Fourth Circuit Vacates National Park Service Right-of-Way Permit for Atlantic Coast Pipeline Project
content top

Fourth Circuit Vacates National Park Service Right-of-Way Permit for Atlantic Coast Pipeline Project

By Joel L. Greene, Gerit F. Hull and Andrea I. Sarmentero Garzón

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
Gerit F. Hull, 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

Legal Disclaimer

Please note that the materials contained within this web site have been prepared by Jennings, Strouss & Salmon, P.L.C. for informational purposes only so that readers may learn more about the firm, the services it provides the background of its attorneys, and recent developments in the law. These materials do not constitute, and should not be considered, legal advice, and you are urged to consult with an attorney on your own specific legal matters. Transmission of the information contained in the Jennings, Strouss & Salmon web site is not intended to create, and receipt by the reader does not constitute, an attorney-client relationship with Jennings, Strouss & Salmon or any of its individual attorneys. While we would certainly like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Please do not send us any information about a matter that may involve you until you receive written authorization to do so from one of our attorneys. Unless otherwise indicated in individual attorney biographies, attorneys resident in the firm's various offices are not certified by the Board of Legal Specialization or a similar body of any State. This site may contain hyperlinks to Web sites operated by parties' independent from Jennings, Strouss & Salmon. Such hyperlinks are provided for your reference only. Jennings, Strouss & Salmon does not control such Web sites, and is not responsible for their content. Jennings, Strouss & Salmon's inclusion of hyperlinks to such Web sites does not imply any endorsement of the material on such Web sites or any association with their content. Your access and use of such sites, including information, material, products, and services therein, shall be solely at your own risk. Further, because the privacy policy of this Site is applicable only when you are on this Site, once linked to another Web site, you should read that site's privacy policy before disclosing any personal information.