In the aftermath of a federal appeals court ruling that could prove a major snag to construction of Dominion Energy’s Atlantic Coast Pipeline, the company has pledged to steer clear for now of areas that could contain threatened or endangered species.
But opponents of the 600-mile natural gas pipeline set to carve through West Virginia, Virginia and North Carolina are insisting that the Federal Energy Regulatory Commission, which approved the project last fall, is obligated to stop the project in its tracks.
On Tuesday, the U.S. Court of Appeals for the 4th Circuit in Richmond vacated a key review by the U.S. Fish and Wildlife Service that gauged the risk of pipeline construction and operation on certain bats, fish, mussels and a nearly extinct bumblebee, among other species.
At issue was the agency’s “incidental take statement” for the project, which sets limits for killing or harming endangered or threatened species. The three-judge panel found that the agency’s limits — which in some cases were set at “a small percent” of an unknown total population — were too vague to be adequately enforced.
The Southern Environmental Law Center, which argued the case on behalf of the Sierra Club, Defenders of Wildlife and the Virginia Wilderness Committee, says the court’s action undermines every other federal approval the project has received, from the FERC authorization to approvals by the U.S. Army Corps of Engineers and the U.S. Forest Service.
“You can proceed only if you have a valid incidental take permit,” said D.J. Gerken, an attorney with the law center. “You’re missing a fundamental building-block authorization on which all the others are based.”
Dominion told FERC on Wednesday that pipeline construction, which the company has begun in West Virginia and is seeking to start in North Carolina, will not proceed in “any areas where such activities may affect listed species.”
“Atlantic should, within five days, file documentation that specifically identifies by milepost/stationing the habitat areas that will be avoided with respect to each of the listed species and confirms the company’s commitment to avoid construction in these areas,” FERC’s David Swearingen, a chief in the agency’s gas branch, wrote to Dominion.
A FERC spokeswoman would not address whether the court’s ruling undercuts other federal authorizations for the project.
“According to the Federal Energy Regulatory Commission’s own certificate, FERC’s previous notices issued to Atlantic Coast Pipeline developers to proceed are no longer valid,” Gerken said. “If what FERC is now saying is that developers can now proceed to construction without the Fish and Wildlife Service’s valid permit, it is undermining its own requirements.”
Dominion insisted Tuesday that the court’s decision only affects “certain defined areas along the route” and that the Atlantic Coast Pipeline will “move forward with construction as scheduled.”
“We are continuing to analyze the order and the effects it will have on the project,” Dominion spokeswoman Jen Kostyniuk said in a statement Wednesday. “We can say that the impact of the U.S. 4th Circuit Court of Appeals ruling is on a small portion of the 600-mile route and there will be no impact in North Carolina. Through our project planning, we purposefully avoided areas of endangered species, which is why the impact of this ruling is relatively limited.”
FERC does not reveal the exact locations of where the pipeline route crosses threatened or endangered species habitat. The Fish and Wildlife Service said habitat of the Indiana bat, one of the species listed in the statement, that was proposed to be cleared by the project encompassed 4,447 acres in Virginia and West Virginia.
“If you assume it’s a linear corridor, that’s 290 miles of pipeline just from Indiana bat,” Gerken said.
In its biological opinion and incidental take statement, the Fish and Wildlife Service also said that the “action area” for the document is “all lands in” Pennsylvania, West Virginia, Virginia and North Carolina that are “affected directly or indirectly by the project’s components.”
“Our next steps will be to consult with the U.S. Fish and Wildlife Service, who we expect will revise the incidental take statement to provide limits that are more specific,” Kostyniuk said.
“While we do not have a specific date of when the revised incidental take statement will be prepared, ACP has conducted extensive survey work for all six species over the past four years and there is a robust record on which to resolve this matter in an expedited manner,” Kostyniuk added. “We will fully comply as required while we continue to construct the project.”
Gerken isn’t so sure the agency will be able to quickly put together a defensible statement.
“All these decisions, these agencies were asking the right, hard questions on these projects, and they pivoted on a dime in 2017 and rushed out these approvals,” Gerken said. “It may be that the answers that they get on the impacts to the species leave them ineligible for this authorization.”
A single endangered rusty patched bumblebee, for example, a species that has seen its population plummet by 88 percent since the 1990s, was discovered in the project area last year.
That was followed up with about an hour of field work.
“You can blast the pipeline through there and, even if you dynamite a colony, overall the species is going to be fine,” he said. “What the Fish and Wildlife Service is supposed to do is conclude that there is no jeopardy to these species. ... They didn’t collect the data.”
Dominion, he added, is doing damage control.
“They’ve had a major setback, and they want the markets to think everything is proceeding according to plan,” Gerken said.
That view, he added, is “far more rosy than accurate.”