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4th US Circuit again halts major natural gas pipeline project permit

Highlights

Court stays FWS' second attempt at species statement, biological opinion for ACP

ACP calls stay overly broad, plans emergency motion for clarity

Project would ship Appalachian gas to downstream markets

Houston — The 4th US Circuit Court of Appeals again put the brakes on a major interstate natural gas pipeline project, this time staying new permits related to vulnerable species for the Atlantic Coast Pipeline project.

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The 600-mile, 1.5 Bcf/d pipeline would move Appalachian gas to downstream markets in the mid-Atlantic region. Like the neighboring Mountain Valley Project, it has faced multiple legal challenges from environmental groups, who have scored several victories in the 4th Circuit.

Aaron Ruby, a spokesman for lead developer Dominion Energy, said the stay is "unwarranted" and "overly broad." ACP will file a motion for emergency clarification on the scope of the court's decision, he said.

"We do not believe there is any basis for the court to stay the entire biological opinion, which authorizes all 600 miles of the project," he said. "The issues in this case involve a much narrower scope of the project covered under the incidental take statement - only four species and roughly 100 miles in West Virginia and Virginia."

On December 7, the court put on hold -- pending litigation brought by environmental groups -- the Fish and Wildlife Service's revised biological opinion and incidental take statement, addressing impacts to threatened and endangered species, for the project.

SECOND ATTEMPT

The same court earlier this year struck the previous incidental take statement for the project for failing to set clear, enforceable limits to harm on vulnerable species. The court also struck a National Park Service Permit allowing the pipeline to cross under the Blue Ridge Parkway.

The agencies worked quickly to issue new documents. FWS put forward a new opinion and statement September 11, maintaining its view that the project is unlikely to jeopardize the continued existence of a handful of vulnerable species. It also issued a fresh incidental take statement setting revised numerical limits, among other things.

Environmentalists then went back to court to challenge recently reissued federal permits they contended were rushed through the door. They argued that additional surveying was needed, and route alternatives should be considered in light of new information on the presence of the rusty patched bumble bee and a species of mussel known as the clubshell.

Ruby said developers believe FWS thoroughly addressed issues raised by the court and the petitioners, and said ACP would vigorously defend the reauthorizations in oral argument before the court early next year.

"In developing this project over the last four years, we have taken extraordinary care to protect the sensitive species at issue in this case," he said.

Southern Environmental Law Center Attorney Patrick Hunter welcomed the decision. "The Fish and Wildlife Service scrambled to reissue this permit and its haste is evident in its analysis," he said in a statement. VIRGINIA ORDER

Separately, the environmental group welcomed a Virginia State Corporation Commission decision rejecting an integrated resource plan for Dominion's Virginia Electric and Power Company.

"In rejecting the company's inflated forecast of electricity demand, ... the order reaffirms what SELC has argued for years about Dominion's flawed planning process and calls into question the need for proposed projects like the Atlantic Coast Pipeline," said SELC attorney Will Cleveland in a statement.

The SCC December 7 found the company failed to establish the plan was reasonable and in the public interest and ordered the company to revise it. It found the company did not include a least-cost plan in its 2018 IRP and did not meet all of the requirements of recent legislation. It ordered the company to calculate incremental costs of 5,000 MW of nameplate wind and solar, $870 million in spending on energy efficiency programs, a 30 MW battery storage pilot, and other plans and pilots.

The commission added it has "considerable doubt" about the accuracy and reasonableness of the company's load forecast in predicting energy and peak load requirements.

-- Maya Weber, maya.weber@spglobal.com

-- Edited by Joe Fisher, newsdesk@spglobal.com