Consideration of legal challenges to the certificate issued in December 2017 by the Federal Energy Regulatory Commission for construction of the Atlantic Coast Pipeline (ACP), which was to be argued before the DC Circuit Court of Appeals on October 16, has been deferred. The case before the Court consolidates several cases, including the challenge brought by several ABRA members asking that the FERC certificate for the ACP be invalidated. The Order deferring the argument of the case, issued by the DC Circuit late on October 4, explained that the reason for delaying the scheduled argument was the U.S. Supreme Court’s decision announced earlier that day to accept for argument United States Forest Service v. Cowpasture River Preservation Association case, in which the Fourth Circuit Court of Appeals decided that the Forest Service did not have the authority to grant the ACP the right to cross the Appalachian Scenic National Trail.
The DC Circuit will decide when to reschedule consideration of the FERC challenge after the Supreme Court hands down a decision on the Cowpasture case. No date has yet been set by the Supreme Court for the Cowpasture case to be argued, but it is believed that will occur sometime in February or March 2020, with a decision being made before the end of June. Initial briefs by parties in the Cowpasture case are to be filed with the Supreme Court by December 19.
In the meantime, construction on the ACP is still suspended as the company awaits issuance by the U.S. Fish and Wildlife Service (FWS) of a new biological opinion for the project, which is expected to occur sometime in coming weeks. The Southern Environmental Law Center submitted to FWS on October 1 an 88-page submission to the agency on how it should consider rewriting the new biological opinion, noting:
As the agency well knows, this is the second time its approvals for this project have been vacated. Both vacaturs followed rushed, incomplete analysis unsupported by best available science. We urge the agency to resist pressure from the pipeline companies to fast-track yet another approval for this unnecessary project and to instead heed its mandate under the Endangered Species Act (“ESA”) to protect and conserve endangered and threatened species and their habitats. That requires avoiding inflicting further harm on species where that injury may jeopardize the species, as it would here for rusty-patched bumble bee, clubshell, and Roanoke logperch.
In the year since the agency issued its last biological opinion and incidental take statement, facts regarding the impact of constructing this pipeline on protected species have changed. The agency must take these changes into account to issue a valid approval for this project. If the agency again seeks to expedite approvals, we are concerned these changes will be ignored. Therefore, on behalf of Defenders of Wildlife, Sierra Club, and the Virginia Wilderness Committee, we request that the agency consider the following in its re-evaluation of the pipeline.