Building the Atlantic Coast Pipeline could endanger four threatened species, and a federal agency’s approval also jeopardizes the species, lawyers for a coalition of environmental groups told a panel of federal judges Thursday.
“There’s no question this project is going to wipe out this population, and the Incidental Take Statement authorizes that,” D.J. Gerken, senior attorney at the Southern Environmental Law Center, told judges on the 4th Circuit Court of Appeals in Richmond, Virginia, referring to a permit from the U.S. Fish and Wildlife Service that describes the impact pipeline construction might have on endangered or threatened species.
The 600-mile-long natural gas pipeline will be buried underground and run from West Virginia to an extension in Chesapeake, Virginia, and continue into Eastern North Carolina. Dominion Energy is leading the construction and operation of the project.
In this case, Gerken argued that Fish and Wildlife’s approvals ignored new information that showed the pipeline would threaten the Rusty Patched Bumble Bee, Clubshell (an endangered mussel), Indiana Bat and Madison Cave Isopod (a threatened subterranean freshwater crustacean).
The arguments came almost a year to the day after lawyers for the SELC argued in Richmond that the project’s first Incidental Take Statement was too vague and that providing an estimate of the affected geographical area would be more precise than an estimate of how many plants and animals exist. Five days later, on May 15, the court vacated the permit.
Chief Judge Roger Gregory and Judges James Wynn and Stephanie Thacker issued a unanimous opinion in August, calling the Fish and Wildlife permit “vague and unenforceable.” The panel also vacated a permit from the National Park Service that would have allowed the pipeline to cross under the Blue Ridge Parkway.
The same panel of judges heard arguments Thursday.
These opinions prompted the Federal Energy Regulatory Commission, the entity that oversees the project, to issue a halt to construction.
That summer, the Virginia Department of Conservation and Recreation looked for Rusty Patched Bumble Bees and informed Fish and Wildlife that the populations were right near the project’s rights of way.
“Even after this notification — after its 2017 ITS was vacated but before reinitiating consultation — FWS did not survey for RPBBs or, apparently, ask FERC or Atlantic to survey,” Gerken wrote in a legal brief challenging the new Incidental Take Statement.
Construction could hurt the bumblebees, in particular, by obliterating foraging resources that benefit queens — “indirectly leading to reduced reproductive success,” the SELC wrote in legal briefs.
Directly, the SELC said, construction could crush or kill foundress queens that establish nests, affecting the population generally.
“We feel very strongly the agency rushed out an approval, ignoring its own facts and records, and is threatening the survival of endangered species that is flatly illegal,” Gerken said in an interview.
Fish and Wildlife consulted an expert at the University of Minnesota to determine the number of queen bees along the pipeline’s route, Kevin McArdle, an attorney for the Department of Justice, told judges Thursday.
“Actually what she said is, ‘All I have is a wild guess.’ And what you said is that it was her best guess. She said, ‘All I have is a wild guess based on what I’ve seen in other captive and retrieved colonies,’” Thacker said, noting that the words ‘’estimate” and “best” were not in the expert’s emails.
“I’m not saying she’s not an expert; I’m saying a wild guess is not scientific,” Thacker said.
“It’s an informed guess,” McArdle said.
That information is the best available, lawyers for the pipeline wrote in legal briefs. Disagreement alone, they wrote, isn’t grounds for overturning Fish and Wildlife’s “expert opinions.”
“With respect to the Indiana Bat, the fail-safe here is that the Service did exactly what this court admonished them to do, which was to avail themselves of the existing data on bats and to establish a numeric take limit,” Brooks Smith, a lawyer for the project, said Thursday.
In December, the panel granted a stay to the Incidental Take Statement. The next week, the judges vacated the Forest Service’s Special Use Permit and Record of Decision, each required to construct the pipeline through the George Washington and Monongahela national forests. The panel also said the Forest Service didn’t have the authority to allow construction across the Appalachian Trail.
Dominion Energy voluntarily halted construction, which has been on hold since. Dominion will appeal to the U.S. Supreme Court later this month, a company spokesman said.
Last year, a joint review by the Charleston Gazette-Mail and nonprofit newsroom ProPublica showed that, as pipelines continued to break environmental rules, state and federal agencies continued to clear roadblocks for the projects.