Fourth Circuit Tosses Permits for Atlantic Coast Pipeline

RICHMOND, Va. (CN) – The Fourth Circuit revoked construction permits Monday for a natural gas pipeline that environmentalists and locals say will harm endangered species and impact scenic views on federally protected lands.

In a 62-page opinion, Chief U.S. Circuit Judge Roger Gregory said two federal agencies failed to follow their own congressional mandates when they approved building permits for the Atlantic Coast Pipeline, which aims to bring natural gas from the Ohio Valley through Western Virginia’s Appalachian Mountains to the Atlantic Coast for sale overseas.

The decision was the result of two lawsuits filed by Sierra Club and other environmental groups which accused the U.S. Fish and Wildlife Service of creating unenforceable “take” numbers for endangered species that would be impacted by construction of the pipeline. They also claimed the National Park Service did not account for the visual impact of the project.

Take numbers are part of the permitting process which set acceptable amounts of damage to protected species.

According to Judge Gregory, U.S. Fish and Wildlife Service was too rushed in their permitting process when it set “habitat surrogates,” which broadly track environmental impacts, versus numeric limits on takings.

“FWS did not establish a causal link between the pipeline and the habitat selected for some of the species; and the surrogate limits adopted are unenforceable because they set the vague take limits of a ‘small percent’ or a ‘majority’ of individuals,” he wrote for a unanimous three-judge panel, quoting and agreeing with the environmental groups’ argument.

While the agency had argued numeric limits were not possible because it lacked current data about the affected species, Gregory scoffed at the claim.

“FWS cannot escape its statutory and regulatory obligations by not obtaining accurate scientific information,” he wrote, calling the agency using a lack of data collection as an excuse for the hurried permit “arbitrary and capricious.”

As for the impact the pipeline will have on scenic views, Gregory similarly found the National Park Service failed to adhere to its own guidelines when it approved a 150-foot-wide right of way for construction  through the Blue Ridge Parkway, which offers scenic views of the Appalachian Mountains above and the Shenandoah Valley below.

Gregory pointed to the agency’s own report about the detrimental impact of construction and how allowing the pipeline would run contrary to the agency’s mission to “preserve unimpaired the natural and cultural resources and values of the National Park System.”

He also criticized the permits’ language which says the pipeline “is consistent with the use of these lands for Parkway purposes,” without any explanation how it accomplishes that in the face of the National Park Service’s own contradictory surveying.

“We find this lack of explanation particularly troubling given the evidence in the record indicating that the presence of the pipeline is inconsistent with and in derogation of the purposes of the Parkway and the Park System,” he wrote.

While the Fourth Circuit’s decision revokes the permits for the time being, Dominion Energy, the company that owns the pipeline project and is managing its construction, told the Richmond Times-Dispatch they were confident the ruling was more of a speed bump than a road block.

“We believe the court’s concerns can be promptly addressed through additional review by the agencies without causing unnecessary delay to the project,” spokesman Aaron Ruby told the Richmond-area paper in a written statement. “In the meantime, we will continue making progress with construction in West Virginia and North Carolina.”

The Sierra Club, however, hailed the ruling as a win in their long fight against the pipeline’s construction.

“Once again, the corporate polluters behind the Atlantic Coast and Mountain Valley pipelines have been stopped from running fracked gas pipelines roughshod through our communities, our forests, and our neighborhoods,” Executive Director Michael Brune said in a statement. “There is no right way to build these dirty, dangerous fossil fuel projects, and people in Virginia and across the country will continue to come together to fight them until they are permanently halted.”

Southern Environmental Law Center Senior Attorney Greg Buppert compared Monday’s ruling to one issued in late July against the Mountain Valley Pipeline, which ran into trouble when a judge similarly found federal agencies failed to follow their own rules in issuing building permits on protected lands.

“It’s time to pause and take a look at this project for what it is, an unnecessary pipeline that’s being pushed through to benefit Dominion Energy, not the people of Virginia and North Carolina,” Buppert said in a statement. “The Federal Energy Regulatory Commission should immediately halt all construction on the Atlantic Coast Pipeline.”

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