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Court declines to speed review to help with Atlantic Coast Pipeline scheduling woes

Washington — Despite Atlantic Coast Pipeline'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.

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ACP previously has said it paused work on nearly the entire project designed to move Appalachian shale gas to Mid-Atlantic market, after the 4th US Circuit Court of Appeals December 7 stayed the federal approvals in question while litigation proceeded.

Seeking to ease the impact on the project schedule, ACP on December 14 asked the court to move up oral argument, tentatively set for March, 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.


But the 4th Circuit Court of Appeals December 28 denied ACP's motion to expedite briefing and oral argument.

ACP still has an outstanding request pending with the court that could help it to get back on track faster, if granted. It has asked the court to clarify that the intended scope of the stay was narrower or to reconsider the stay entirely (Defenders of Wildlife v. US Department of Interior, 18-2090). A spokesman for ACP did not immediately reply to a request for comment.

Environmental petitioners in the case did not directly oppose ACP's request to expedite the court schedule but have been arguing in the court docket over whether DOI and FWS have withheld important documents and failed to file a complete administrative record in the case. The environmentalists have sought to demonstrate that agency staff were pressed to cut corners in issuing permits to avoid interfering with the applicant's project schedule. Of note, DOI and FWS have asked the court to stay all pending deadlines in light of the lapse of federal appropriations during the partial government shutdown in Washington.

The case involves FWS' biological opinion, which determines whether an action is likely to jeopardize continued existence of vulnerable species, and its incidental take statement, which specifies the amount of impacts to species allowed as a result of a project.


This is FWS' second attempt at 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.

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

At the US 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 FERC December 21 to say that ACP's continued stringing of pipeline along the right-of-way is not needed for ensure stabilization.

Elsewhere, the project is still working to obtain a permit for a compressor in Union Hill, Virginia; a vote by the State Air Pollution Control Board was delayed December 19. Virginia officials and community members have voiced concerns over environmental justice and health issues in the historically black community. Lead developer Dominion Energy has expressed confidence 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,

-- Edited by Richard Rubin,