There are now five principal legal challenges to the Atlantic Coast Pipeline (ACP). Here’s a brief rundown of these challenges and their status:
- FERC certificate – A suit challenging the FERC certificate was filed August 16 with the 4th Circuit Court of Appeals by Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates (Appalmad), on behalf of a group of ABRA member organizations and other plaintiffs This followed FERC’s refusal to reconsider its October 13, 2017 approval of a certificate for the ACP in a motion filed in January by the same group of plaintiffs. In the meantime, two other challenges to FERC’s ACP decision were filed in the District of Columbia Circuit of Appeals. Under federal law, all cases challenging the FERC order for the ACP must be in a single circuit, so the SELC/Appalmad suit was re-assigned to the D.C. Circuit. SELC & Appalmad filed on October 15 a motion to transfer all ACP FERC proceedings from the D.C. Circuit to the 4th Circuit because of the deep experience that Circuit Court has with the ACP issues. A decision on the requested transfer is not expected until sometime in November.
- Forest Service – The challenge to the U.S. Forest Service’s issuance of a Special Use Permit for the ACP on January 23 was filed February 5 with the 4th Circuit Court of Appeals. Plaintiffs are a group of ABRA members and others, represented by SELC and Appalmad. Oral arguments on the case were heard on September 28 and we await a decision by the court.
- Virginia Section 401 Certificate – The December 12, 2017 decision by the Virginia State Water Control Board to conditionally approve a water quality certificate for the ACP, as required under Section 401 of the federal Clean Water Act, was challenged in a suit filed January 18 by SELC and Appalmad on behalf of a client group, most of whom were also plaintiffs in the Forest Service case. The 401 case was heard in oral argument before the 4th Circuit on September 28 and we await a decision.
- National Park Service Permit – The National Park Service ‘s (NPS) December 2017 approval for the ACP to cross underneath the Blue Ridge Parkway and the Appalachian National Trail was challenged in the 4th Circuit by the Sierra Club and the Virginia Wilderness Committee, represented by SELC. The Court vacated the permit on August 6 and FERC issued a stop work order for the entire project on August 10. The stop work order was lifted September 17 when the NPS issued a new permit that purported to remedy the deficiencies in the earlier permit. That permit has been re-challenged by the plaintiffs in the 4th.
- Fish and Wildlife Service – The U.S. Fish and Wildlife Service’s (FWS) biological opinion on threats to endangered species by the ACP was vacated by the 4th Circuit Court of Appeals on May 5, but an opinion from the Court explaining its order was not issued until August 6, as part of the same order vacating the NPS permit. As with the NPS permit, a new biological opinion was issued by the FWS that sought to meet the court’s objections. That re-issued opinion has also been challenged by the plaintiffs in the first case, the Sierra Club and the Virginia Wilderness Committee, represented by SELC.
Legal Challenges to FERC Certificate and Other ACP Permits – An Update