Court Vacates ACP Permits

Yesterday, the Fourth Circuit Court of Appeals unanimously vacated the permit issued to Dominion Power by the National Park Service (NPS) for a right of way under the Blue Ridge Parkway, a critical component of the 600 mile Atlantic Coast Pipeline (ACP). The Court noted that the NPS had acted arbitrarily and capriciously in issuing the permit, had relied on laws which didn’t apply and that the issuance itself was not consistent with the mission of NPS.  Wrote the Chief Judge, “We find it remarkable that counsel representing the National Park Service, which is charged with ‘providing 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,’ would seem to take a litigation position that regards the premier conservation agency’s role as no more than highway maintenance.”

This most recent setback for Dominion comes on the heels of a May 2018 ruling by the same judges which rejected the U.S. Fish and Wildlife Service’s approval of the project for Endangered Species Act protections.  In that appeal, the court found that the agency’s issuance of an “Incidental Take Statement” violated the law because it lacked specific limits on the impacts to five endangered species, including two species of bat, insects and fish.  Without such limits, it would be impossible to determine how much of an impact the pipeline construction was actually having on these native species.

The judge also noted that Federal Energy Regulatory Commission’s (FERC) grant of authority for Dominion to begin construction is conditioned on the existence of valid authorizations from both FWS and NPS and that without those permits, continued construction would violate FERC’s certificate of public convenience and necessity for the ACP.  As a result, Southern Environmental Law Center, on behalf of PRKN, Shenandoah Riverkeeper, and many other environmental organizations, called on Federal Energy Regulatory Commission to order a halt to all construction on the project.