Court orders FWS to rework 2018 Atlantic Coast pipeline approvals

A federal appeals court in Richmond, Va., ruled that the US Fish and Wildlife Service did not correct deficiencies when it issued a fresh biological opinion and incidental take statement for the proposed Atlantic Coast natural gas pipeline early in 2018.

A federal appeals court in Richmond, Va., ruled that the US Fish and Wildlife Service did not correct deficiencies when it issued a fresh biological opinion (BiOp) and incidental take statement (ITS) for the proposed Atlantic Coast natural gas pipeline (ACP) early in 2018. After three environmental organizations challenged the new findings, a panel of judges in the US Fourth Circuit Appeals Court granted their petition on July 26 and vacated the US Department of the Interior agency’s 2018 BiOp and ITS.

“We cannot ignore that it took FWS a mere 19 days to issue the 2018 BiOp and ITS after [the US Federal Energy Regulatory Commission] resumed formal consultation with the agency following our first decision in this matter,” Chief Judge Roger L. Gregory said in the latest decision with Judges James A. Wynn Jr. and Stephanie D. Thacker.

“In fast-tracking its decisions, the agency appears to have lost sight of its mandate under the [1973 Endangered Species Act]: ‘to protect and conserve endangered and threatened species and their habitats,’” it said. “This mandate has priority over the ‘primary missions’ of federal agencies. We hope that, upon remand, FWS will consider any further action it takes with this mandate in mind.”

In both versions, the BiOp focused on four species: the rusty patched bumble bee, clubshell, Indiana bat, or Madison Cave isopod. Because FWS anticipated incidental taking, harassment, or killing of the creatures was possible if the pipeline was built, it issued an ITS that set limits on the number of each species which could be taken.

“The [ACP] threatens endangered species, clean water, and human health for a fracked gas pipeline that we don’t even need. We have said all along that many of the ACP’s permits were issued in flawed, rushed processes, and time after time, the courts have agreed,” Nathan Matthews, an attorney for the Sierra Club which sued to overturn the FWS’s 2018 BiOp and ITS with Defenders of Wildlife and the Virginia Wilderness Committee, said after the latest decision.

ACP officials did not respond immediately to OGJ’s request for a comment.

Contact Nick Snow at nicks@endeavorb2b.com.

More in Pipelines