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Court declines to speed review to help Atlantic Coast pipeline schedule

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Court declines to speed review to help Atlantic Coast pipeline schedule

Despite Atlantic Coast Pipeline, LLC's warnings that the current court schedule could delay the 600-mile, 1.5 Bcf/d natural gas project, a federal appeals court declined to speed the pace for briefing and oral argument for a challenge to federal endangered species permitting.

Atlantic Coast had said it paused work on nearly the entire project, which is designed to move Appalachian shale gas to mid-Atlantic markets, after the U.S. Appeals Court for the 4th Circuit in early December 2018 stayed the federal approvals in question while litigation proceeded.

Seeking to ease the impact on the project schedule, Atlantic Coast asked the court Dec. 14, 2018, to move up oral argument, tentatively set for March 2019, to the end of January. It contended that time-of-year restrictions that prohibit tree felling after mid-March could mean a delay of up to a year under the current schedule for briefing and oral argument. It also told the court that the cost of stopping construction is about $20 million per week and that significant delays could mean most of the 3,000 full-time workers in West Virginia and North Carolina would be released.

Court order

The 4th Circuit on Dec. 28, 2018, denied Atlantic Coast's motion to expedite briefing and oral argument.

Atlantic Coast still has an outstanding request pending with the court that could help it to get back on track, if granted. The company has asked the court to clarify that the intended scope of the stay was narrow or to reconsider the stay entirely. (U.S. Appeals Court for the 4th Circuit docket 18-2090)

Karl Neddenien, a spokesperson for lead Atlantic Coast pipeline developer Dominion Energy Inc., said the company was "disappointed" that the court denied the motion to expedite, and the court's pending decision on whether to clarify or rethink the stay would shed further light on the impact on the schedule.

"In developing this project over the last four years, we have taken extraordinary care to protect the sensitive species at issue in this case. We will vigorously defend the agency's reauthorizations and the measures we've taken to protect the species in our written and oral arguments before the court," Neddenien said.

Environmental petitioners in the case did not directly oppose Atlantic Coast's request to expedite the court schedule, but they have argued that the U.S. Interior Department and the Fish and Wildlife Service withheld important documents and failed to file a complete administrative record in the case. The environmentalists have sought to demonstrate that agency staff was pressed to cut corners in issuing permits to avoid interfering with the applicant's project schedule.

The Interior Department and the Fish and Wildlife Service have asked the court to stay all pending deadlines in light of the lapse of federal appropriations during the partial federal government shutdown.

The case involves the Fish and Wildlife Service's biological opinion, which determines whether an action is likely to jeopardize vulnerable species, and its incidental take statement, which specifies the amount of incidental harm to species allowed on a project.

More hurdles

This is the wildlife agency's second attempt to write approvals for the project. The 4th Circuit in May 2018 vacated the prior incidental take statement, finding it failed to include enforceable limits on "take" of protected species.

Atlantic Coast has other legal hurdles to clear; these permits are not the only ones on hold as a result of environmental groups' litigation. The court has also vacated the U.S. Forest Service's authorizations for Atlantic Coast to cross a stretch of national forest land and the Appalachian National Scenic Trail. And in response to a separate 4th Circuit stay, the U.S. Army Corps of Engineers has suspended water crossing verifications for the project.

At the Federal Energy Regulatory Commission, the environmental groups have been pressing for a broad stop-work order as a result. The Southern Environmental Law Center wrote to FERC on Dec. 21, 2018, to say Atlantic Coast's continued stringing of pipeline along the right of way is not needed to ensure stabilization.

Elsewhere, the project is still working to obtain a permit for a compressor in Union Hill, Va. A vote by the State Air Pollution Control Board was delayed in December 2018. Virginia officials and community members have voiced concerns over environmental justice and health issues in the historically black community. Dominion has expressed confidence that it will gain approval, arguing the permit recommended by state Department of Environmental Quality is the most stringent air permit with the strongest environmental protections of any compressor station in the country.

Maya Weber is a reporter for S&P Global Platts, which, like S&P Global Market Intelligence, is owned by S&P Global Inc.