RICHMOND — A U.S. appeals court on Friday tossed out a key permit for the Atlantic Coast Pipeline that deals with the project’s effects on threatened or endangered species, saying a federal agency had apparently “lost sight of its mandate.”
A three-judge panel of the 4th U.S. Circuit Court of Appeals wrote that the U.S. Fish and Wildlife Service had made decisions that were “arbitrary and capricious” in its authorization for the pipeline.
“In fast-tracking its decisions, the agency appears to have lost sight of its mandate under the [Endangered Species Act]: ‘to protect and conserve endangered and threatened species and their habitats,’ ” the court wrote.
The decision is the latest in a series of legal setbacks for the 600-mile pipeline, the construction of which has been on hold since December.
The project designed to carry natural gas from West Virginia into Virginia and North Carolina is years behind schedule, and its total cost has increased by about $2 billion.
Questions about endangered species have also been raised with the Mountain Valley Pipeline, a similar project that is moving through Southwest Virginia at a faster clip.
In May, the Sierra Club wrote in a letter to the U.S. Fish and Wildlife Service that “ample” new evidence has come to light since the agency determined in 2017 that protected fish and bats would not be significantly harmed by building the pipeline.
Joined by two other environmental groups, the Sierra Club asked the agency to reexamine its earlier decision — a move that could stop work on the 303-mile Mountain Valley pipeline. A Fish and Wildlife spokeswoman said Friday that it has not taken that step.
More sediment than expected from pipeline construction is reaching streams and causing problems for the Roanoke logperch and the candy darter, the Sierra Club wrote in its letter. Other endangered or threatened species in the pipeline’s path include the Indiana and northern long-eared bats and the small whorled pogonia, an orchid that grows mostly in stands of hardwoods.
The Sierra Club said in May that it would “evaluate next steps,” which could include litigation. As of Friday, no legal challenge had been filed.
The Atlantic Coast Pipeline appeal dealt with four species: the rusty patched bumble bee; the clubshell, a mussel; the Indiana bat; and the Madison Cave isopod, a crustacean.
Last year, the court vacated the Fish and Wildlife Service’s incidental take statement, which usually authorizes a project to harm or kill no more than a limited number of threatened or endangered species.
Soon after, the agency revised its work and issued a new one, which environmental groups challenged.
The court wrote that it could not ignore that it took the agency “a mere 19 days” to issue the new incidental take statement and related biological opinion after the court’s first decision.
“In its rush to help this pipeline company, the agency failed to protect species on the brink of extinction — its most important duty. This pipeline would blast through some of the last populations of these rare animals,” said Patrick Hunter, an attorney with the Southern Environmental Law Center, which represented the environmental groups that sued.
A spokeswoman for the Fish and Wildlife Service said the agency is reviewing the decision.
Lead developer Dominion Energy had no immediate comment but has previously defended the pipeline permitting processes as exhaustive.
Dominion, which is a partner in the Atlantic Coast project along with Duke Energy and Southern Co., says the pipeline will lower energy costs and boost economic development, both through its construction and by increasing the availability of natural gas.
Opponents say the project will cause environmental harm and question the need for a massive natural gas pipeline at a time when they say climate change makes it imperative to invest in renewable energy.
Roanoke Times staff writer Laurence Hammack contributed to this report.