The Atlantic Coast Pipeline, LLC filed on January 28 a petition with the Fourth Circuit Court of Appeals asking that the Court grant rehearing en banc (before the full Fourth Circuit) on the successful challenge that a group of ABRA members made against the Forest Service permit for the Atlantic Coast Pipeline (ACP). A three-judge panel of the Court vacated the Forest Service permit on December 13. If the rehearing request is granted, a new hearing would be scheduled before all fifteen judges of the Fourth Circuit. In the meantime, the finding of the three-judge panel vacating the Forest Service permit for the ACP remains in effect
The petition sharply criticizes the three-judge panel opinion. Some excerpts:
- Inventing procedural hurdles to stymie the project, the panel repeated an error that the Supreme Court has spent decades denouncing: The panel went “[b]eyond the APA’s minimum requirements … ‘to impose upon [the] agency its own notion of which procedures are “best” or more likely to further some vague, undefined public good.’”
- The panel’s procedural holdings flout emphatic Supreme Court directives about judicial review of agency action. And any suggestion that Congress must authorize any pipeline to cross the 2,200-mile Appalachian Trail has dramatic implications and badly misconstrued the statutes governing National Forests, National Parks, and National Trails. Both sets of errors will have serious, widespread ramifications and merit rehearing en banc.
- . . . the possibility of a 2,200-mile barrier to pipeline construction from Maine to Georgia will chill infrastructure development and is even more problematic and erroneous. The panel’s holding is unfaithful to several statutes, bucks the longstanding practice of every involved agency, and will take scores of public and private landowners by surprise. There is simply no basis for erecting any such barrier between energy sources and energy consumers.
It is worth noting that the presiding judge of the three-judge panel that handed down the unanimous Forest Service permit decision that is being challenged by the petition is also the Chief Judge of the Fourth Circuit Court of Appeals. A decision on the ACP, LLC petition is not expected until later in February.