The Fourth Circuit of the U.S. Court of Appeals on July 26 struck down the latest permit the U.S. Fish and Wildlife Service (FWS) had issued for the Atlantic Coast Pipeline (ACP). The issue arose from a requirement in the Endangered Species Act that (quoting from the decision) “the proposed pipeline will not jeopardize the continued existence of several endangered and threatened species that are likely to be impacted by pipeline construction. As relevant here, the Biological Opinion concluded that the pipeline will not jeopardize four species: the rusty patched bumble bee, clubshell, Indiana bat, or Madison Cave isopod.”
The FWS issued an opinion in 2017 stating that the ACP did not endanger any endangered species. The permit was challenged in a lawsuit filed by the Southern Environmental Law Center (SELC) on behalf of the Defenders of Wildlife, Sierra Club and the Virginia Wilderness Committee (the latter two organizations are ABRA members).
In response to that legal challenge the Fourth Circuit in May 2018 vacated the FWS permit, which it explained in its opinion (not issued until August 6) that the “FWS’s vague and unenforceable take limits are arbitrary and capricious.” The agency reissued a new permit in September 2018, which was again challenged by the same plaintiffs. The Fourth Circuit stayed the new permit and, in response to that, the Atlantic Coast Pipeline, LLC suspended all construction of the project in late 2018. The case was argued on May 9, 2019 (see ABRA Update #232, May 10, 2019).
In its July 26 opinion, the Fourth Circuit stated:
Specifically, Petitioners assert that FWS improperly determined that pipeline construction will not jeopardize the rusty patched bumble bee or the clubshell, and they challenge the validity of the take limits imposed for the Indiana bat and the Madison Cave isopod. Because we find that FWS arbitrarily reached its no-jeopardy conclusions and failed to correct the deficiencies in the take limits that we identified in the previous appeal, we grant the petition and vacate the 2018 Biological Opinion (BiOp) and Incidental Take Statement.(ITC)
Much of the Court’s opinion focused on the inadequacies of FWS in analyzing the potential impact of the ACP on the rusty patch bumblebee (RPBB). It concluded:
In sum, the 2018 BiOp’s conclusion that the ACP will not jeopardize the RPBB in Bath County, Virginia, is arbitrary and capricious because it runs counter to available evidence, relies on data without providing a meaningful basis for that reliance, fails to consider the species’s status as a whole, and fails to consider the pipeline’s impacts on RPBB recovery.
The Court also criticized the agency for its rush to judgment in issuing the second BiOp:
We cannot ignore that it took FWS a mere 19 days to issue the 2018 BiOp and ITS after FERC resumed formal consultation with the agency following our first decision in this matter. In fast-tracking its decisions, the agency appears to have lost sight of its mandate under the ESA: “to protect and conserve endangered and threatened species and their habitats.”
In response to the Court’s decision, Dominion Energy Aaron Ruby stated:
“Based on the clear direction provided by the court in today’s opinion, we expect FERC and the Fish and Wildlife Service will be able to immediately begin working to correct the issues identified by the court. Once the new Biological Opinion and Incidental Take Statement are issued, we will seek the necessary approval from the Federal Energy Regulatory Commission to resume construction. We’re confident we remain on track to complete the project by late 2021.”