A three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals has sided with the opponents of the Dominion Energy-led Atlantic Coast Pipeline and have invalidated a U.S. Fish and Wildlife Service review, causing a potential halt to the construction of the 600-mile pipeline. Though, Dominion says they will move forward with construction, citing the federal court ruling only covers portions of the proposed pipeline route.
Pipeline opponents and environmental lawyers have argued that the federal review known as an “incidental take statement,” setting limits on killing threatened or endangered species during construction and operation, was so vague that it could not be enforced.
“We conclude, for reasons to be more fully explained in a forthcoming opinion, that the limits set by the agency are so indeterminate that they undermine the incidental take statement’s enforcement and monitoring function under the Endangered Species Act,” the judges wrote in an order Tuesday according to the Richmond Times-Dispatch.
“Accordingly, we vacate the Fish and Wildlife Service’s incidental take statement,” they added, which included certain types of bats, fish, mussels, and a nearly extinct bumblebee, among other species in the multi-state area.
“You can proceed only if you have a valid incidental take permit,” said D.J. Gerken, an attorney with the Southern Environmental Law Center. “You’re missing a fundamental building-block authorization on which all the others are based.”
Gerken said the review allowed for a “small percent” of some endangered and threatened species to be killed during construction, but failed to define the exact terms. He said, “A small percent would never get triggered because nobody knows what it is.”
He added, “This is an unnecessary and destructive project. And sending them back to the drawing board is a necessary step to asking those fundamental questions about whether we need it.”
But does the ruling really halt the project?
On Wednesday, Dominion told the Federal Energy Regulatory Commission (FERC) that construction of the pipeline, which began in West Virginia and is looking to start in North Carolina, “will not proceed in ‘any areas where such activities may affect listed species.'”
FERC Branch Chief David Swearingen wrote back to Dominion saying, “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.”
Dominion spokeswoman Jen Kostyniuk said in a statement that, “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.”
The FERC did not specify the exact location of where the construction of the pipeline route crosses into areas of threatened or endangered species habitats. Kostyniuk says the next steps they will take, apart from other construction, will be to consult with the U.S. Fish and Wildlife Service to determine, “limits that are more specific.”
“We will fully comply as required while we continue to construct the project,” she added.
So, when it comes to protesting the pipeline, it seems that even the federal court cannot stop the project. However, the tree-sitters and so-called “peaceful” protesters are now resorting to violent eco-terrorism to ensure the livelihood of the Indiana Bat and bumblebees.
