Permits for the Atlantic Coast Pipeline (ACP) that were issued by the National Park Service (NPS) and the Fish and Wildlife Service (FWS) and were struck down last month by the Fourth Circuit of the U.S. Court of Appeals were reissued this past week. The Federal Energy Regulatory Commission (FERC) followed-up on September 17 by lifting the stop work order for the project that had been imposed on August 10. Construction activity on the ACP has resumed in West Virginia and North Carolina.
On September 19, in response to the FERC action, the Southern Environmental Law Center, representing the Sierra Club and the Virginia Wilderness Committee, filed with the Fourth Circuit a joint petition asking for review of the reissued permits to determine if they comply with the objections the Court had expressed in striking down the original permits.
The Fourth Circuit vacated the two permits on August 6, stating the following:
- Regarding FWS’s biological opinion on threats to endangered species, 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.”
- In striking down the NPS’s permit to allow the ACP to cross the Blue Ridge Parkway and the Appalachian Trail, the Court faulted the agency’s reading of its statutory authority and explicitly stated that the petitioners’ arguments were “a more than reasonable interpretation” of relevant statues.
- The Court also observed that “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.”
A copy of the SELC joint petition for review of the NPS’s new permit for the ACP is available here. A copy of the petition for on the new FWS biological opinion is available here. Both petitions include as an attachment a copy of the new permits issued by the respective agencies.