Atlantic Coast Pipeline foes won a significant legal victory yesterday when the Richmond-based U.S. Circuit Court of Appeals invalidated a Fish and Wildlife Service Review of pipeline construction. Limits set by the federal agency for the protection of endangered species were “so indeterminate” that they rendered enforcement of the Endangered Species Act meaningless.
“This puts a stop to any work that could threaten rare and endangered species and that’s much of the pipeline route,” the Richmond Times-Dispatch quoted D.J. Gerken, the Southern Environmental Law Center attorney who argued the case, as saying.
Dominion officials said they would push ahead with the project. “We will fully comply as required while we continue to construct the project,” said company spokesperson Jen Kostyniuk. “Although we disagree with the outcome of the court’s decisions, an are evaluating our options, we are committed to working with the agency to address the concerns raised by the court’s order.”
According to Gerken, the Fish and Wildlife Service’s review allowed for a “small percent” of endangered species to be killed during construction, but did not define what constituted a small percent. “A small percent would never get triggered because nobody knows what it is,” he said.
The project will cross the habitats of eight endangered or threatened species, including the Roanoke logperch, the Indiana and long-eared bats, the Madison Cave isopod, the rusty patched bumblebee, and the clubshell mussel.
Bacon’s bottom line: The ruling gives a moral victory to pipeline foes but I doubt it will be a significant blow to the project. Dominion Energy, the ACP’s managing partner, will argue with pipeline foes over how to define what constitutes a “small percent” of loss to the endangered species and what kind of protections are needed. The Fish and Wildlife Service will develop more specific criteria. Unless Dominion appeals the case, it will buckle under and spend whatever money it takes to comply. The company is so deeply committed to the project that it cannot afford to back out.
Update: Dominion issued a statement this morning: “”We remain confident in the project approvals and the Atlantic Coast Pipeline will continue to move forward with construction as scheduled. This decision only impacts activities directly covered by the Incidental Take Statement in certain defined areas along the route. We will fully comply as required while we continue to construct the project. Although we disagree with the outcome of the court’s decision, and are evaluating our options, we are committed to working with the agency to address the concerns raised by the court’s order.”