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Fourth Circuit ruling casts doubt on future of Mountain Valley Pipeline with its impacts on endangered species

The pipeline construction project faces more legal blockage as it continues to disturb important habitats for endangered wildlife.

WASHINGTON (CN) — The Fourth Circuit on Thursday invalidated the Fish and Wildlife Service's 2020 biological opinion and incidental take statement for the Mountain Valley Pipeline, after petitioners from a collection of environmental nonprofit organizations argued that they failed to consider the project's environmental impact on endangered fish.

The decision is the latest setback for the Mountain Valley Pipeline, a proposed 42-inch diameter, 304-mile natural gas pipeline that would stretch from West Virginia to Virginia, delivering up to two billion cubic feet of natural gas per day to markets in the mid-Atlantic and Southeast.

It's construction is more than three years behind schedule, barely half complete and billions over budget as the project continues to face several legal battles from disturbing habitats in the more than 1,100 streams and 6,951 acres of land it crosses.

“Three more key federal agencies have been sent back to the drawing board after failing to analyze MVP’s harmful impacts,” said Kelly Sheehan, Sierra Club senior director of energy campaigns. “The previous administration’s rushed, shoddy permitting put the entire project in question. Now the Biden administration must fulfill the commitments it has made on climate and environmental justice by taking a meaningful, thorough review of this project and its permitting. When they do, they will see the science is clear: MVP is not compatible with a healthy planet and livable communities. MVP must not move forward.”

Under the Endangered Species Act, federal agencies such as the one authorizing the pipeline project, the Federal Energy Regulatory Commission, are required to prioritize saving endangered or threatened species.

Whenever an agency action “may affect listed species,” the agency must formally consult with the Fish and Wildlife Service, who then formulates a "biological opinion" on whether that action, "in light of the relevant environmental context,
“is likely to jeopardize the continued existence of [those] species."

After their opinion concluded that the project was not likely to jeopardize any of the listed species it examined, petitioners’ argued that they failed to adequately analyze the environmental context for two endangered species of fish in particular, the Roanoke logperch and candy darter.

U.S. Circuit Judges Roger Gregory, a George W. Bush appointee, James Wynn and Stephanie Thacker, both Barack Obama appointees, concluded in agreement with the petitioners.

"We recognize that this decision will further delay the completion of an already mostly finished Pipeline, but the Endangered Species Act’s directive to federal agencies could not be clearer: 'halt and reverse the trend toward species extinction, whatever the cost.' On remand, the Fish and Wildlife Service should consider this mandate carefully, especially given the precarious state of the candy darter," wrote Wynn.

According to the Center for Biological Diversity, the candy darter is "on the brink of extinction," and the two populations that would be impacted by the pipeline are "essential" to the species' recovery.

The project would further impact the river population that harbors the majority of the also endangered Roanoke logperch species.

Much of the Fish and Wildlife Agency's biological opinion evaluation of the environmental baseline for the species was
"sparse and scattered" according to the judges.

Another recent decision from the Fourth Circuit invalidated approvals by the U.S. Forest Service and Bureau of Land Management for construction through Jefferson National Forest.

"Sacred life prevailed today with the court’s acknowledgement of the harmful impact MVP has on everything in its path, specifically endangered and threatened species,” said Russell Chisholm, co-chair of the Protect Our Water, Heritage, Rights Coalition. “Holding MVP accountable to the law is key to the ultimate cancellation of this noxious fracked gas pipeline. This decision not only protects the candy darter and other endangered species, it sets us on course to stop MVP, decisively transition away from deadly fossil fuels, and reroute towards a renewable economy on a livable planet.”

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