In another blow to construction of the 600-mile Atlantic Coast Pipeline (ACP), certificated by the Federal Energy Regulatory Commission (FERC) on October 13, 2017, the Fourth Circuit Court of Appeals on August 6: (1) vacated as arbitrary and capricious the National Park Service’s (NPS’s) right-of-way permit that would have allowed the project sponsors to drill and pass under the Blue Ridge Parkway, and (2) affirmed its prior decision that the Incidental Take Statement (ITS) issued by the U.S. Fish & Wildlife Service (FWS) was arbitrary and capricious in violation of the Endangered Species Act, and should be vacated. Following issuance of its decision, counsel for Petitioners immediately advised FERC that it “must issue a stop work order for all aspects of the Atlantic Coast Pipeline.” The pipeline has argued that construction can continue, based on its expectation that NPS will imminently reissue the permit without changes. FERC has not yet responded, but has recently issued a stop work order on the unrelated Mountain Valley Pipeline under similar circumstances.
The first of the two consolidated petitions challenged the legality of FWS’s issuance of an ITS authorizing ACP to “take” – i.e., kill, harm, or harass – five species that are listed as threatened or endangered. Petitioners identified two flaws that make the take limits unenforceable: first, that FWS failed to set numeric limits on the take of the five threatened and endangered species, and second, that FWS failed to comply with the requirements for using habitat as a surrogate for a numeric limit. The court explained that although FWS is not required to set a numeric limit, it can only use a habitat surrogate if it demonstrates a causal link between the species and the delineated habitat, shows that setting a numerical limit is not practical, and sets a clear standard for determining when incidental take is exceeded. After addressing in detail each of the five species challenged, the court determined that FWS failed some or all of these requirements, and thus FWS’s take limits are not enforceable and therefore arbitrary and capricious.
Second, NPS issued a right-of-way permit allowing ACP to drill and pass underneath the Blue Ridge Parkway. While the pipeline would not breach the Parkway’s surface, the proposed route would require removing all of the trees from a portion of a nearby forest, leaving a 125-foot wide vertical clearing that would be visible from the Parkway during initial construction; once construction is completed, the clearing would be reduced to a permanent 50-foot wide corridor reserved for pipeline maintenance. Petitioners successfully challenged the right-of-way permit, arguing that NPS failed to comply with the Mineral Leasing Act and the Blue Ridge Parkway Organic Act. The court determined that NPS did not explain how the pipeline crossing is not inconsistent with the purposes of the Blue Ridge Parkway and the overall purpose of the National Park System, and therefore the permit decision was arbitrary and capricious.
Recognizing that NPS is charged with “provid[ing] for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations,” it was reasonable that the court at the outset would find that the petitioners had established standing to challenge the NPS permit on behalf of their members. Applying the traditional 3-pronged standard (viz., concrete and particularized injury in fact, actual or imminent; fairly traceable to the challenged action; and likely to be redressed by a favorable action), the court found that in this case each prong was met by the petitioners’ members in their own right, and thus they had standing to bring their suit:
Injury in Fact: Pipeline construction and maintenance would prevent members’ longstanding history of enjoying not just the Blue Ridge Parkway generally, but the Three Ridges Overlook specifically. The pipeline would prevent the members as homeowners and frequent visitors from enjoying the full beauty of the Parkway and the Overlook.
Injury Fairly Traceable to or caused by NPS decision: The NPS right-of-way permit enabled and virtually ensured the alleged harm to the Parkway’s aesthetic value.
Demonstrating Redressability: Absent the pipeline crossing, there would be no associated construction and maintenance corridor nearby to interfere with the recreational use of the Parkway and Overlook.
The court noted that FERC’s authorization for ACP to begin construction is conditioned on the existence of valid authorizations from both FWS and NPS; and absent such authorizations, ACP, should it continue to proceed with construction, would violate FERC’s certificate of public convenience and necessity.
For more information on this topic or other energy-related matters, please contact any of the following attorneys in our national Energy practice:
Joel L. Greene, Member
Andrea I. Sarmentero Garzón, Member
Gary J. Newell, Member
Debra D. Roby, Chair, Energy Department
Alan I. Robbins, Member
Matthew E. Ross, Member
Deborah A. Swanstrom, Member
Omar M. Bustami, Associate