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Federal court throws out another Atlantic Coast Pipeline permit

A federal appeals court has pulled another permit issued to the Atlantic Coast Pipeline, saying the U.S. Fish and Wildlife Service had fast-tracked the permit, putting threatened species at risk.

On Friday, the 4th Circuit Court of Appeals, in Richmond, Virginia, vacated the project’s Biological Opinion and Incidental Take Statement — permits issued by Fish and Wildlife related to the project’s effects on endangered and threatened species.

In a 50-page opinion, Chief Judge Roger Gregory wrote that the U.S. Fish and Wildlife Service “arbitrarily” came to the conclusion that pipeline construction wouldn’t jeopardize the rusty patched bumblebee or clubshell (an endangered mussel) in issuing its Biological Opinion.

Gregory also said the Incidental Take Statement for the Indiana bat and Madison Cave isopod (an eyeless, threatened freshwater crustacean with seven pairs of legs) wasn’t valid.

If Fish and Wildlife finds that a project will jeopardize endangered species, the project cannot be built. If there is “no jeopardy,” the project receives an Incidental Take Statement — a limit on how many of the species it can harm.

“In fast-tracking its decisions, the agency appears to have lost sight of its mandate under the ESA: ‘to protect and conserve endangered and threatened species and their habitats,’” Gregory wrote. Judges James Wynn and Stephanie Thacker joined the opinion.

An ESA is an Environmental Site Assessment.

The 600-mile-long natural gas pipeline, primarily built by Richmond-based Dominion Energy, will be buried underground and run from West Virginia to an extension in Chesapeake, Virginia, and continue into Eastern North Carolina. It’s one of several natural gas pipelines being built in the region to tap into the Marcellus Shale formation.

This is the second time the 4th Circuit has vacated the project’s so-called Incidental Take Statement. The first, issued 2017 by Fish and Wildlife, put “arbitrary and capricious” limits on the number of species the pipeline could legally take, the court decided.

When Fish and Wildlife issued a brand new Biological Opinion and Incidental Take Statement, a coalition of environmental groups challenged those permits, too, saying the federal agency erroneously came to the conclusion that the bumble bee and clubshell would not be jeopardized, and that the agency put invalid limits on Indiana bats and Madison Cave isopods.

The court granted a stay to the permits in December. The groups argued before the court in Richmond in May. Friday, the judges threw out the Incidental Take Statement and Biological Opinion entirely. The Atlantic Coast Pipeline will have to ask Fish and Wildlife for new permits, and only if the agency finds “no jeopardy” may the project move forward.

“Based on the clear direction provided by the court in today’s opinion, we expect FERC [Federal Energy Regulatory Commission] and the Fish and Wildlife Service will be able to immediately begin working to correct the errors identified by the court,” Aaron Ruby, spokesman for Dominion Energy, said.

The project is on track for a late-2021 end date, he said.

Construction the Atlantic Coast Pipeline stopped in December because of that stay and a decision by the same court to vacate permits from the U.S. Forest Service. Dominion Energy is appealing that decision in the U.S. Supreme Court.

“We have said all along that many of the ACP’s permits were issued in flawed, rushed processes, and time after time, the courts have agreed,” Nathan Matthews, an attorney for the Sierra Club, one of the groups challenging the permit, said in a statement.

“In its rush to help this pipeline company, the agency failed to protect species on the brink of extinction — its most important duty. This pipeline would blast through some of the last populations of these rare animals,” Patrick Hunter, an attorney with the Southern Environmental Law Center, said in a statement, calling the project a “badly planned boondoggle.”

Earlier this year, the West Virginia House of Delegates passed a resolution that condemned groups, like the Sierra Club and Southern Environmental Law Center, that challenged the Atlantic Coast Pipeline. It was written by a lobbyist for Dominion Energy, public records showed.

Reach Kate Mishkin at

kate.mishkin@wvgazettemail.com, 304-348-4843 or follow

@katemishkin on Twitter.

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