An aerial photo shows construction of the Atlantic Coast Pipeline in West Virginia underway in 2018. (Pipeline Compliance Surveillance Initiative)

Court revokes Atlantic Coast Pipeline’s Fish and Wildlife permit

By Whitney Pipkin,

A federal court has overturned a permit needed for the Atlantic Coast Pipeline to continue its path across West Virginia and Virginia, where some say construction would impact endangered species.

Construction of the 605-mile-long natural gas pipeline was halted early this year in West Virginia after judges began sending other federal permits back to the drawing board in late 2018. The Atlantic Coast Pipeline, one of two contentious pipeline projects underway in parts of West Virginia and Virginia, would cross part of the Chesapeake Bay watershed on its path to North Carolina.

Officials from Dominion Energy, the company behind the project, said they expect the permit from the U.S. Fish and Wildlife Service that was invalidated on July 26 can be reissued with some changes. They predict that the revocation will not impact the project’s cost — which has grown to an estimated more than $7 billion amid permitting delays — or its timeline for completion by 2021.

“There is nothing in the court’s opinion on the four species that we expect would prevent the Biological Opinion from being reissued in time to recommence construction by year-end and complete critical path tree felling during the November through March window,” Dominion Energy’s CEO Tom Farrell said during a recent second-quarter earnings call with shareholders.

Environmental advocates who have opposed the project contend that several federal permits were initially issued in haste under political pressure from Dominion Energy, leaving them vulnerable to legal challenges.

In a 50-page opinion accompanying its decision to vacate the permit, the 4th U.S. Circuit Court of Appeals expressed agreement.

“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,’?” Chief Judge Roger L. Gregory wrote in the opinion.

The court’s decision sends the permit back to the Fish and Wildlife Service. The agency could take a second look at how to reduce the project’s impact on endangered species or it could require the pipeline to consider an alternate path, among other options, sources said.

The lawsuit, argued by the Southern Environmental Law Center on behalf of the Defenders of Wildlife, Sierra Club and Virginia Wilderness Committee, challenged the agency’s assertion that pipeline construction would not jeopardize endangered populations of rusty patched bumble bees or clubshell mussels. It also disputed the incidental take statements — which detail the number of a certain species that could be killed or harmed during construction — related to populations of Indiana bats and Madison Cave isopods.

Since late last year, courts have responded to many of the lawsuits filed against the Atlantic Coast Pipeline by reversing federal permits that would have allowed the pipeline to cross-national parks and trails or to impact endangered species, halting construction while the project appeals or seeks new permits.

“I think this is a case of Dominion causing self-inflicted wounds,” said SELC staff attorney Patrick Hunter. “If they’re going to get approvals from these federal agencies, they have to give them the time to do their jobs and not think that they can use political power to get these agencies to rush out approvals.”

Hunter said such rushed approvals can lead to analyses that “don’t comply with the law” and are vulnerable to lawsuits brought by any number of the environmental groups opposing the projects.

Dominion officials contend the project is necessary, pointing to growing demand for natural gas-based energy along the proposed pipeline’s route.

As Farrell asserted on the shareholder call, “Public utilities continue to need this project to serve their existing customers, move toward a low-carbon future and enable economic development.”

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