Fourth Circuit Again Tosses Permit for Atlantic Coast Pipeline

RICHMOND, Va. (CN) – Throwing out a federal permit for the 600-mile Atlantic Coast Pipeline for the second time, the Fourth Circuit ruled unanimously Friday that the U.S. Fish and Wildlife Service “lost sight of its mandate” to assess the project’s impact on four endangered species in Appalachia.

Defenders of Wildlife, Sierra Club and the Virginia Wilderness Committee prevailed in their challenge to FWS’ biological opinion and incidental take analysis that allowed construction of the $5.5 billion pipeline, which would bring natural gas from the Ohio Valley through Western Virginia’s Appalachian Mountains to the Atlantic Coast for sale overseas.

A rusty-patched bumblebee on Culver’s root in the arboretum at the University of Wisconsin, Madison. (Photo by Susan Day via UW-Madison Arboretum) 

The environmentalist groups had sued the agency while the pipeline owner, Atlantic Coast Pipeline LLC, intervened in the case.

In 2017, the Fourth Circuit heard a previous challenge of a separate FWS opinion on the pipeline’s impacts on specific species. The agency found that construction would not jeopardize four endangered species: the rusty patched bumblebee, clubshell mussel, Indiana bat and Madison Cave isopod.

But the Richmond, Virginia-based appeals court found key sections of the federal permit issued by FWS ignored environmental regulations for threatened and endangered species, and send it back to the agency for another review.

The court again rejected the new FWS permit on Friday, noting the haste of the agency’s actions. Only 19 days after the prior decision, the agency issued another biological opinion and incidental take analysis approving the project, which became the basis for the current dispute.

In a 50-page opinion written by Chief U.S. Circuit Judge Roger Gregory, the three-judge panel found the requirement to assess environmental impacts takes priority over the mission of federal agencies.

“In fast-tracking its decisions, the agency appears to have lost sight of its mandate under the [Endangered Species Act]: ‘to protect and conserve endangered and threatened species and their habitats,’” the ruling states. “We hope that, upon remand, FWS will consider any further action it takes with this mandate in mind.”

According to the ruling, FWS continued to speculate on how a pipeline would affect endangered species in the 2018 biological opinion by drawing conclusions from the same research used in its 2017 findings.

As an example, Gregory pointed to the case of the rusty patched bumblebee, abbreviated in the opinion as RPBB. The judge noted that the most recent biological opinion determined that pipeline construction would likely “cause the crushing of 8 overwintering queens, the crushing of worker bees, and will impact one RPBB colony capable of producing 30 overwintering queens.”

“These estimates were based on FWS’s assumption that 22 RPBB nests are located in the high potential zone and that each nest produces 30 overwintering queens, resulting in a total of 660 overwintering queens each cycle in the high potential zone—a number of queens… that exceeds the total number of RPBBs that have been documented in current populations worldwide,” Gregory wrote.

FWS spent even less time evaluating the effects of construction on the clubshell, a river-dwelling species of mussel, the ruling states. The agency’s most recent survey concluding clubshells are unlikely to be found upstream of the proposed pipeline’s salvage area relies on data from 1993.

“The 2018 BiOp fails to explain why the 1993 survey remains the best available information on which to base estimates of the location of the clubshell population,” the opinion states.

Judge Gregory, a Bill Clinton appointee, was joined on the panel by U.S. Circuit Judges Stephanie Thacker and James Wynn, both appointed by Barack Obama.

Patrick Hunter, a staff attorney with the Southern Environmental Law Center, which argued on behalf of the environmental groups, said in a phone interview Friday the ruling recognizes that FWS failed to do its job.

Losing this permit, one of many that the construction project led by North Carolina-based Duke Energy and Dominion Energy of Virginia needs to continue, will prove detrimental, he said.

“With approvals for this project, there’s a pattern,” Hunter said. “Dominion Energy is exerting political pressure on federal agencies to issue permits and approvals. When they’ve done that, it has led to errors being introduced in the process, because these agencies are being pressured to do things too quickly.”

Representatives from the Defenders of Wildlife, Sierra Club and Virginia Wildlife Committee could not be reached for comment Friday. Neither could Kevin McArdle, a Justice Department attorney who represented FWS.

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