by Jon Sokolow
The Fourth Circuit Court of Appeals has just thrown out another federal permit for Dominion Energy’s Atlantic Coast Pipeline.
In a crushing and unanimous 50-page decision, a three-judge panel of the Fourth Circuit vacated the Fish and Wildlife Service Biological Opinion and Incidental Take Statement, which had given Dominion permission to construct the pipeline despite the threatened harm to four endangered species along the route.
This is just the latest blow to Dominion’s $8 billion corporate boondoggle. Every federal permit that has been challenged in the Fourth Circuit for both the Atlantic Coast and Mountain Valley Pipelines has been thrown out by the court.
Every single one.
And this is the second time the court has vacated Fish and Wildlife permits for the Atlantic Coast Pipeline. An earlier permit issued by FWS in 2017 was vacated by the court in May 2018 as having been arbitrary and capricious. That decision and others led to the suspension of construction activities in December 2018 across the entire length of the pipeline route
One year later, the reissued permit has now met the same fate. And the court did not mince words:
“We agree with Petitioners that the FWS again acted arbitrarily.”
The latest decision came in a case brought by Defenders of Wildlife, the Sierra Club and the Virginia Wilderness Committee, which are represented by the Southern Environmental Law Center. They challenged the FWS failure to protect four endangered species: the rusty patch bumble bee, clubshell, Indiana Bat and Madison Cove Isopod.
The court’s language on the rusty patch bumble bee gives a sense of how off base the FWS was:
“The 2018 BiOp’s conclusion that the ACP will not jeopardize the RPBB in Bath County, Virginia, is arbitrary and capricious because it runs counter to available evidence, relies on data without providing a meaningful basis for that reliance, fails to consider the species’ status as a whole, and fails to consider the pipeline’s impacts on RPBB recovery.”
With regard to the clubshell, the court took issue with the fact that FWS relied on 25-year-old data to determine whether the species could recover from ACP construction:
“The agency’s reliance on out-of-date information also calls into question the reasonableness of FWS’s estimate of the number of clubshell present…and likely to be impacted by the ACP.”
And the court pointed out that FWS itself admitted its data was outdated. Despite that admission, FWS concluded that the species’ survival was not threatened by ACP construction. As the court pointed out:
“We cannot ignore that it took FWS a mere 19 days to issue the 2018 BiOp and ITS after FERC resumed formal consultation with the agency following our first decision in this matter. 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.”
Concluding, the court held:
For the foregoing reasons, FWS’s 2018 BiOp and ITS arbitrarily conclude that ACP construction will not jeopardize the RPBB or the clubshell and fail to create enforceable take limits for the Ibat and MCI. Because FWS’s decisions are arbitrary and capricious, we vacate the 2018 BiOp and ITS.”
The permits now go back once again to the FWS. What happens next is not clear. What is clear is that Dominion has lost every case that the Fourth Circuit has decided with regard to the federal permits issued for the Atlantic Coast Pipeline. This latest decision will cause further delay. And further expense.
And the court is scheduled to hear arguments in October regarding Dominion’s attempt to build a massive methane driven compressor station in the heart of Union Hill, an historic African American community founded by freed slaves after the Civil War. That compressor station would severely impact the residents of that community and effectively destroy one of the last remaining African American communities founded by freedmen and women on land they toiled as slaves, which is why the Virginia State Conference of the NAACP and 28 members of the General Assembly have urged the Fourth Circuit to throw out Dominion’s permit for that project as well.
In a statement earlier today, the Southern Environmental Law Center put it well:
“In its rush to help this pipeline company, the agency failed to protect species on the brink of extinction – its most important duty. …There is no evidence that this pipeline is needed for anything other than Dominion and Duke Energy profits. For the sake of these rare species and its customers’ wallets, it’s time for these utilities to walk away from this badly planned boondoggle.”
And as SELC said:
“’Construction on the Atlantic Coast Pipeline has been stopped since December 2018 when multiple permits were called into question or overturned including permits from the Fish and Wildlife Service, National Park Service, Forest Service, and U.S. Army Corps of Engineers. Those permits are all still outstanding. Among the problems for this pipeline is a Federal Court decision that the Forest Service erred in allowing the pipeline to carve through national forests and was not authorized to allow the project to cross the Appalachian Trail. There is no clear path forward to construct the pipeline on its current route. The project is several years behind schedule and more than $2 billion dollars over budget. If constructed, ratepayers will be expected to pay for the pipeline while the energy companies collect a 15% profit.”
It is time for Dominion to call it quits and abandon what Al Gore has aptly called a “reckless, racist ripoff.”
It is time for Dominion and its investors to come to their senses.