Washington — Presenting a further legal hurdle to the Atlantic Coast Pipeline natural gas project, the US 4th Circuit Court of Appeals on Monday vacated a permit the National Park Service issued that allowed the pipeline to cross under the scenic Blue Ridge Parkway.
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The court also fleshed out reasoning for its May order vacating a Fish and Wildlife Service permit that authorized harm to threatened or endangered species from the construction.
The 600-mile, 1.5 Bcf/d pipeline project, stretching from Harrison County, West Virginia, to Virginia and North Carolina, is part of a batch of projects totaling 6.5 Bcf/d in capacity that would take Appalachian supply to downstream markets in the Mid-Atlantic region. Like the neighboring Mountain Valley Pipeline, its permits to cross forested, mountainous areas have been the target of legal challenges from environmentalists.
Considering the National Park Service right-of-way that allowed for the pipeline to pass under the Blue Ridge Parkway, the court found NPS invoked inapplicable laws to back its decisions. Moreover, it found NPS failed to assure the action was consistent with purposes of the scenic parkway and conservation goals of the national park system. It pointed to NPS' own studies about visual impacts on views from the parkway, and called the agency's lack of explanation on consistency issues "particularly troubling."
Turning to the incidental take permit for species, the court found FWS failed to comply with requirements for when habitat can be used as a surrogate for setting a numeric limit on "take" of species.
It dismissed as "circular and unavailing" claims that some numeric limits were not possible because FWS lacked survey data or Atlantic Coast had not completed the surveys. "FWS cannot escape its statutory and regulatory obligations by not obtaining accurate scientific information," it said. While the agency said it lacked time, the court found FWS "incorrectly characterizes" the law in arguing it needed to complete its consultation within 90 days.
In some cases, such as for the Roanoke Logperch, a freshwater fish, the court noted that FWS had been able to set a numeric limit in another circumstance several years prior. In other instances, such as for the Indiana Bat, the court said FWS without explanation used about half the 3,400 acres of habitat it knew the pipeline would affect.
The decision came one business day after the US Federal Energy Regulatory Commission halted work on the Mountain Valley Pipeline following a 4th Circuit ruling striking permits for national forest crossings for that project.
Given that action, "FERC should immediately halt all construction on the Atlantic Coast Pipeline," said SELC Senior Attorney Greg Buppert."This is an example of what happens when dangerous projects are pushed through based on politics rather than science," added Southern Environmental Law Center attorney DJ Gerken.
Aaron Ruby, a spokesman for Atlantic Coast, said the developers believed the court's concerns "can be promptly addressed through additional review by the agencies without causing unnecessary delay to the project." Atlantic Coast already has provided FWS with the information needed to issue a revised incidental take statement, he said. "We anticipate the agency will do so shortly."
As to the NPS permit, he said, "we believe the extensive public record and mitigation requirements already in place provide ample support for the agency to promptly reissue the permit."
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