Fourth Circuit Court of Appeals Invalidates Incidental Take Permit for Atlantic Coast Pipeline
On Tuesday (5/15/18), the 4th Circuit Court of Appeals issued an order vacating an incidental take permit issued by the U.S. Fish and Wildlife Service for a pipeline project. The Atlantic Coast Pipeline project, backed by Dominion Energy, involves a 600-mile pipeline for natural gas. The proposed route starts in West Virginia and ends in North Carolina. The project is estimated to cost between $6 and $6.5 billion. Project opponents included environmental groups, such as Sierra Club and CBD, represented by the Southern Environmental Law Center.
In short, the 4th Circuit criticized the incidental take statement issued by the FWS for failing to contain sufficiently defined terms and limits on take. Thus, the court concluded that the incidental take statement was insufficient under the federal Endangered Species Act. The court’s order indicates that a more detailed decision is forthcoming.
In response to the court’s order, FERC has indicated that it will not stop work on the pipeline project. Rather, FERC issued a letter directing the pipeline applicant to file a plan within five days explaining how threatened or endangered will be avoided. Since the court’s order only affects certain portions of the pipeline, the applicant intends to move forward with construction of other sections. Project opponents have indicated that they are considering legal options in response to FERC’s decision, and the project still faces other controversy resulting from the exercise of eminent domain for the proposed route.