A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit in Richmond, VA on May 9 heard arguments challenging the U.S. Fish and Wildlife Service’s (FWS) biological opinion and incidental take statement for the Atlantic Coast Pipeline (ACP) that led to work stopping on the project. The original FWS permit was voided by the Fourth Circuit in May 2018 in response to a lawsuit filed by the Southern Environmental Law Center (SELC) on behalf of Defenders of Wildlife, Sierra Club and the Virginia Wilderness Committee. A new FWS permit was issued on September 11, 2018 and is being challenged in this case.
SELC argued that the FWS’s reissued permit relied on a series of irrational assumptions that mischaracterized the potential impact of the ACP route on the rusty patched bumble bee and erred in its analysis of the project’s impact on three other endangered species: the clubshell mussel, Indiana bat and Madison Cave isopod. Most of the questioning from the judges focused upon the adequacy of the FWS’s evaluation of the threat of the project to the rusty patched bumble bee, a species listed as endangered by the FWS in 2017.
The Court seriously questioned the Department of Justice attorney, representing FWS, who contended that a bee expert retained by the agency had made an informed “best estimate’ of the impact of the ACP on the rusty patched bumble bee population in Bath County, VA, when – as the Court pointed out – the expert instead had used the term “wild guess” to characterize her analysis. An audio recording of the May 9 oral arguments (40 minutes) is available here.
A decision on the case is not expected until late summer. For more, see the E&E Energywire article below in In the News: “4th Circuit casts critical eye on Atlantic Coast Pipeline permits.”