On Monday, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit threw out a pair of permits for the Atlantic Coast Pipeline. One permit addressed protections for endangered species; the other allowed the project to tunnel under the federally owned Blue Ridge Parkway.
Late last month, the same court revoked a different permit for the separate Mountain Valley Pipeline, one that would have allowed that project to cross a 3.5-mile stretch of the Jefferson National Forest. On Friday, the Federal Energy Regulatory Commission called a halt to all work on the full, 300-mile length of the Mountain Valley Pipeline until the national forest permit issue is resolved.
Though the hitches for both projects could prove temporary, environmental groups that brought the cases said the mounting legal troubles show the pipelines were approved in a hasty manner.
“This is an example of what happens when dangerous projects are pushed through based on politics rather than science,” lawyer D.J. Gerken, who argued the Atlantic Coast Pipeline case for the Southern Environmental Law Center, said via email.
The companies behind both projects said the issues raised by the court cases are not major threats and defended the pipelines as having been exhaustively reviewed by government agencies.
“We believe the Court’s concerns can be promptly addressed through additional review by the agencies without causing unnecessary delay to the project,” Atlantic Coast Pipeline spokesman Aaron Ruby said in an email. “In the meantime, we will continue making progress with construction in West Virginia and North Carolina.”
On Tuesday, the Southern Environmental Law Center called on the Federal Energy Regulatory Commission to also call a halt to work on the Atlantic Coast Pipeline because of the permitting issue.
The Atlantic Coast project is the bigger of the two, and is being built by a consortium of companies led by Dominion Energy. It would carry natural gas 600 miles from West Virginia through central Virginia and down into North Carolina. Tree-felling for the project stopped in Virginia in March, and the state has not yet given final approval to erosion and sediment control plans, so work on that pipeline in the state was on hold even before the federal permit revocations.
The route for the Atlantic Coast Pipeline is slated to pass under the Blue Ridge Parkway near the Wintergreen ski resort in Nelson County near Charlottesville. The parkway is controlled by the National Park Service, which had approved the plan.
But the judges, in a 62-page opinion written by Fourth Circuit Chief Judge Roger Gregory and joined by judges James A. Wynn Jr. and Stephanie D. Thacker, said the Park Service “acted arbitrarily and capriciously by failing to explain why ACP’s pipeline is not inconsistent with parkway purposes.”
Gregory noted that “unlike other Federal lands, such as the national forests, the National Park System’s sole mission is conservation.” Even though the pipeline would tunnel under the roadway, the approach of the pipeline would be cleared of trees and the clearing would alter the scenic view, the judges wrote.
“Indeed, a visual impact study that the NPS oversaw specifically concluded that the effect of the pipeline on views from the Parkway ‘would likely be inconsistent with NPS management objectives,’ ” the judges wrote.
“Given the collective weight of these errors and omissions, we are left with the firm conviction that NPS has not discharged its statutory obligation to apply its considered expertise to the exercise of its delegated authority,” the finding concluded.
The judges similarly criticized the U.S. Fish and Wildlife Service for failing to set specific limits in its permit for harm that could be done to five protected species: the clubshell river mussel, the rusty patched bumble bee, the Madison Cave isopod, the Indiana bat and the northern long-eared bat.
Ruby, the spokesman for the Atlantic Coast Pipeline, said the project has been “the most thoroughly reviewed infrastructure project in the history of our region” and suggested that materials on hand will allow the agencies to reissue the permits without much delay.
The Mountain Valley Pipeline has been farther along in its construction because its erosion and sediment control plans were approved by state regulators, though the Virginia Water Control Board is holding a hearing later this month to take a harder look at water quality issues raised by the project.
That pipeline passes through the rugged terrain of far southwest Virginia and is being built by companies led by EQT Midstream Partners of Pittsburgh.