De­vel­oper and pipe­line foes see dif­fer­ent or­ders in court rul­ing

Do­min­ion says it will avoid cer­tain ar­eas; op­po­nents want project sus­pended

Richmond Times-Dispatch - - FRONT PAGE - BY ROBERT ZULLO

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 build­ing­block 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 600mile 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.”


The In­di­ana bat is one of the en­dan­gered species af­fected by the pipe­line project. More than 4,000 acres of its habi­tat was pro­posed to be cleared.

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