A key permit for the Atlantic Coast Pipeline (ACP) was vacated on August 6 by the U.S. Court of Appeals, Fourth Circuit in a unanimous decision (3-0).  The Court declared that the National Park Service’s (NPS) permit authorizing the ACP to cross under the Blue Ridge Parkway (BRP) and Appalachian National Trail (ANT) was arrived at with improper justification and should be deemed invalid.  In the same opinion, the Court explained the reasons for its May 15 decision to vacate the Fish and Wildlife Service’s (FWS) biological opinion on threats to endangered species.  As with the NPS decision, the Court faulted the NPS for not providing valid reasons why the ACP’s crossing of the BRP and ANT were consistent with the agency’s own standards.

The ruling was on a case brought by the Southern Environmental Law Center (SELC) on behalf of Defenders of Wildlife, Sierra Club and Virginia Wilderness.

In explaining its May 15 Order vacating the FWS’s Incidental Take Statement (ITS) regarding on threatened species protected by provisions of the Endangered Species Act, the Court said:

We find that FWS has failed to create proper habitat surrogates, failed to explain why numeric limits are not practical, and failed to create enforceable take limits for the Clubshell, the Rusty Patched Bumble Bee, the Madison Cave Isopod, the Indiana Bat, and the Northern Long-Eared Bat. Because FWS’s vague and unenforceable take limits are arbitrary and capricious, we vacated the ITS pending the issuance of this opinion.

The Court’s opinion on the NPS permit for the ACP to be tunneled underneath the BRP and ANT faulted the NPS’s reading of its statutory authority and explicitly stated that the petitioners’ arguments were “a more than reasonable interpretation” of relevant statues.

One of the more interesting parts of the Court’s opinion was in a footnote on page 40:

As noted previously, FERC’s authorization for ACP to begin construction is conditioned on the existence of valid authorizations from both FWS and NPS. Absent such authorizations, ACP, should it continue to proceed with construction, would violate FERC’s certificate of public convenience and necessity.

On August 6, SELC and Appalachian Mountain Advocates, on behalf of their respective client groups (most of whom are ABRA members) wrote the Federal Energy Regulatory Commission (FERC) urging the agency to issue a stop work order for all aspects of the Atlantic Coast Pipeline:

As a result of the Court’s decision today, Atlantic is no longer in compliance with mandatory conditions of its Certificate of Public Convenience and Necessity, and the Commission must halt all construction activities.  Environmental Condition 10 of the Certificate Order, 161 FERC ¶ 61,042, p. 137 (Oct. 13, 2017), requires that Atlantic “receive all applicable authorizations required under federal law” before it can “receive written authorization” to commence construction. The Fourth Circuit has now vacated a right-of-way permit from the National Park Service and the Incidental Take Statement from the U.S. Fish and Wildlife Service. Both of these permits are mandatory authorizations required under federal law.

Dominion Energy responded on August 7 with a letter to FERC saying that it expected “that the NPS will promptly re-issue the permit, with the appropriate explanation to address the concerns raised by the Court.”  Continuing, the company wrote:

Atlantic does not expect the NPS to require any additional information or engage in any further public proceedings before taking action on remand. In addition, no NEPA (National Environmental Policy Act) review (or related evaluation of alternatives) is required, as the NPS finding of a Categorical Exclusion is unaffected by the Court’s decision.

At this writing, FERC has not reacted to the 4th Circuit Opinion.

Court Vacates Key Permits for ACP
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