The U.S. Court of Appeals for the Fourth Circuit this week ordered a stay of the Special Use Permit that had been issued by the U.S. Forest Service for the Atlantic Coast Pipeline (ACP). The September 24 Order was the third time in four months that the Fourth Circuit has vacated or stayed federal authorization for the ACP. The Court had issued on May 15 and reaffirmed on August 6 an order vacating the incidental take statement from the U.S. Fish and Wildlife Service (FWS), pursuant to requirements of the Endangered Species Act, and the right-of-way permit issued by the U.S. Park Service (NPS) to permit the pipeline to cross the Blue Ridge Parkway and Appalachian Trail. The Federal Energy Regulatory Commission (FERC) followed-up on August 10 with a stop work order for the project. The stop work order was lifted by FERC on September 17 following the issuance of a revised permit by the NPS and incidental take statement by the FWS.
On September 25 FERC was requested to issue a new stop work order for the ACP, in light of the Fourth Circuit’s Order. The plaintiffs requesting the action, represented jointly by the Southern Environmental Law Center and Appalachian Mountain Advocates, are Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee and Wild Virginia. The Chesapeake Bay Foundation is also a plaintiff in the filing. The plaintiff’s letter to FERC states:
“As the Commission explained in its August 2018 stop-work order, “allowing continued construction poses the risk of expending substantial resources and substantially disturbing the environment by constructing facilities that ultimately might have to be relocated or abandoned.” As a result of the Fourth Circuit’s September 24, 2018 order staying the Special Use Permit and Record of Decision, the same is again true.”
The Fourth Circuit is scheduled to hear oral arguments on Friday, September 28 in a case filed by the same plaintiffs group that challanges the Forest Service permit. The Court will also hear on Friday arguments on a lawsuit challenging the December 12, 2017 decision by the Virginia State Water Control Board to approve a water quality certificate for the ACP. For more, see the article in last week’s ABRA Update that discusses both law suits.