Construction of the Atlantic Coast Pipeline (ACP) should be prohibited because of the
July 26 decision by the Fourth Circuit Court of Appeals to vacate the biological opinion
(BiOp)and incidental take statement (ITC) issued by the U.S. Fish and Wildlife Service (FWS)
for the project. The request was made in a July 31 letter to the Federal Energy Regulatory
Commission (FERC) from the Southern Environmental Law Center (SELC), which represented
plaintiffs in the FWS case.
SELC’s cited four reasons for urging FERC to issue an order halting future construction of
- The Commission may not authorize any action that is likely to jeopardize the continued
existence of an endangered species. The Fourth Circuit decision found arbitrary and
capricious FWS’s conclusion that the ACP would not jeopardize two endangered species:
the rusty patched bumble bee and the clubshell mussel.
- In permitting construction, the Commission risks taking species in violation of the
Endangered Species Act. Although FWS may allow the incidental take of a limited number
of animals in connection with a no-jeopardy biological opinion for that species and an
incidental take statement, those authorizations for the ACP have now been vacated.
- Allowing construction of pipeline facilities that might have to be relocated or abandoned
risks unnecessary environmental harm. If FWS concludes that the ACP will jeopardize
either the rusty patched bumble bee or the clubshell, the proposed pipeline route may
have to be modified to avoid the endangered species.
- The Commission cannot permit construction where Atlantic lacks federal authorizations
that are mandatory conditions of its certificate. Following the Fourth Circuit’s decision,
seven federal authorizations that are mandatory conditions of FERC’s Certificate Order
for the ACP have now been vacated or suspended.
The FWS is now charged with issuing a new BiOp and ITC for the ACP. After FWS’s first
permit for the project was struck down by the Fourth Circuit in August 2018, the agency
reissued a second BiOp and ITC in less than three weeks. In its July 26 opinion, the Fourth
Circuit strongly criticized FWS for its rush to issue new approvals for the project. It remains to
be seen whether the agency will heed that admonishment.