Court vacates permit for ACP

Published 7:48 am Wednesday, July 31, 2019

The U.S. Fourth Circuit Court of Appeals in Richmond ruled Friday to vacate, or render void, a Biological Opinion and Incidental Take Statement by the U.S. Fish and Wildlife Service (FWS) in relation to the Atlantic Coast Pipeline (ACP). This is one in a series of court rulings that have halted the ACP’s progress.

The court initially ruled in December 2018 to grant a stay of implementation to the Biological Opinion and Incidental Take Statement. As a result of the decision, Dominion Energy, one of four major U.S. companies with the ACP, confirmed that all work stopped on the ACP except for activities in reference to public or environmental safety.

The Biological Opinion and Incidental Take Statement argued that the ACP construction would not jeopardize the existence of four endangered species: the rusty patched bumble bee, clubshell, Indiana bat, or Madison Cave isopod.

To take, according to a definition by the U.S. Fish and Wildlife Service website, means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

However, the court ruled that the arguments and actions outlined by the FWS were “arbitrary and capricious,” and ruled in December 2018 to vacate.

The FWS, 19 days after the court’s decision on December 2018, released a new Biological Opinion and Incidental Take Statement.

“Petitioners now challenge the findings of both of those agency actions,” the court opinion cited. “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 and Incidental Take Statement.”

Aaron Ruby, media relations manager with Dominion Energy, said in a Friday statement that the agencies involved in the Biological Opinion and Incidental Take Statement are expected to correct the errors found by the court.

“Based on the clear direction provided by the court in [Friday’s] opinion, we expect FERC and the Fish and Wildlife Service will be able to immediately begin working to correct the errors identified by the court,” Ruby said. “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.”

Ruby noted the economic and environmental impact of the ACP, saying that the pipeline could provide economic growth opportunities and lay the groundwork for cleaner electricity.

“The Atlantic Coast Pipeline has been the most thoroughly reviewed infrastructure project in the history of our region,” Ruby said. “We’ve taken extraordinary care to protect sensitive species and will continue doing so as we work with the agency to complete the additional analysis required by the court. The Atlantic Coast Pipeline is vitally important to the economic and environmental future of our region. Public utilities are depending on it to generate cleaner electricity, heat the homes of a growing population and power economic growth. We remain totally committed to completing the project and are confident we will get back on track later this year.”

Kate Addleson, director of the Sierra Club Virginia Chapter, said in a statement that courts made proper rulings related to the permits. The Sierra Club was one of three petitioners in the case.

“The fracked gas Atlantic Coast Pipeline is among the greatest threats to Virginia’s water, climate, and communities,” Addleson said Friday. “We have always said the ACP’s permits were issued in a rushed and flawed process and the courts have agreed. Dominion should stop putting profits over people and cancel construction of this dirty, dangerous fracked gas pipeline.”

Chad Oba with Friends of Buckingham also praised the decision made by the court in a statement.

“We are so inspired and encouraged by SELC’s (Southern Environmental Law Center) fine work on behalf of these endangered species that are too often overlooked, together with all the environments, including the people who are endangered by the ACP,” Oba said. “We are hopeful that the wisdom of the courts to consider the grave injustices, multiple devastation, and the considerable problems and lack of justified need for this pipeline will continue to be heard. This Pipeline is only needed to make profits for the developers and will increase rate payer’s costs.”

The ACP is projected to span 600 miles, crossing Buckingham, Cumberland and Prince Edward counties.