United States Court of Appeals for the Fourth Circuit Richmond, Va.
by James C. Sherlock
The President and members of Congress have celebrated the enactment of the Bipartisan Infrastructure Act into law.
In Virginia and the other states (Maryland, North Carolina, South Carolina, West Virginia) of the federal Fourth Circuit, good luck with that.
The United States Court of Appeals for the Fourth Circuit just published two related decisions on January 29th and February 4th, 2022 decided by the same three-judge panel, all appointees of Democratic presidents.
Both decisions remanded to federal agencies for reconsideration years of federal assessments that have supported the Mountain Valley Pipeline. Those agencies are now run by Biden appointees. They won’t be back.
The court is populated with a majority of judges appointed by Democratic presidents. There is a vacancy awaiting a Biden appointment. The Chief Judge faces mandatory retirement next year.
So no relief in sight except the Supreme Court.
The decisions clearly demonstrate what will happen to Virginia public infrastructure projects that are opposed by the greens and/or protected classes or both, which will be nearly all of them.
Roads, bridges, pipelines, large solar panel projects, airport expansions, new rail lines, you name it. Flood control? Forget it. They are headed into the federal and state bureaucracies and then to court and then back again.
For years.
The Jan 29 decision commented that this was the second time that court had remanded the same assessments, but this time for different reasons. And it noted further that it had delayed the Atlantic Coast Pipeline the same way until the sponsors withdrew the proposal. Just in case anyone forgot.
Message: don’t bother to bring this back again. Not that the Biden appointees now running the agencies would anyway.
The project set back and likely killed by these two decisions is the Mountain Valley Pipeline. But, my green friends, it might have as easily been about trying to build a commercial solar panel farm.
You could tell where the first decision was headed when the opinion used the words:
It also purportedly analyzed the Pipeline’s cumulative impacts and considered alternatives.
Purportedly.
The decision found that the stream modeling used by the government to define the temporary impacts of construction on stream turbidity “may not have been accurate.” “May.” Not was. They were told to redo it.
Then:
Although the supplemental EIS includes information about method, impact, safety, and environmental concerns related to conventional boring, the agencies’ assent to MVP’s use of conventional boring to construct the stream crossings is premature. Because MVP originally planned to use dry-ditch open cutting and wet cutting to construct the stream crossings, FERC’s initial EIS considered the environmental impact of these methods. It did not extensively consider the conventional bore method because no stream crossings were to be constructed using that method.
“Includes information” but did not “extensively consider.“
Then:
Specifically, FERC conducted a cursory review of MVP’s request to switch to the conventional bore method and, after “informally consult[ing]” with the Fish and Wildlife Service, concluded that the change “is feasible and … will reduce [environmental] impacts on aquatic resources.
A “cursory,” “informal” review.
Then:
Despite FERC’s approval of the use of the conventional bore method for the stream crossings inside the Jefferson National Forest, the Forest Service and the BLM, in deciding whether to approve the Pipeline’s route over those lands, would surely benefit from FERC’s environmental analysis of the use of the conventional bore method for other stream crossings outside the Jefferson National Forest. As a result, the Forest Service and the BLM improperly approved the use of the conventional bore method for the four streams in the Jefferson National Forest without first considering FERC’s analysis.
“Surely benefit from.”
The February 3rd 2022 decision by the same court and same three judges, APPALACHIAN VOICES; WILD VIRGINIA et. al. vs the United States Department of the Interior is worse.
The (petitioners) allege, among other things, that the agency failed to adequately consider the project’s environmental context while analyzing impacts to two species of endangered fish, the Roanoke logperch and the candy darter. We agree, and therefore vacate the 2020 Opinion and Incidental Take Statement and remand for further proceedings.
The first part of the decision argued not only that the agency models were imprecise, but that models could never be precise enough if not modeled to the specific action area. Now give me your guess as to how long it will take and how much it will cost if broad-area models containing the project area cannot be used for any project.
Then they turned to climate change.
Even if the Fish and Wildlife Service had articulated its (climate change) modeling rationale when it issued the BiOp, we would find that evaluation arbitrary and capricious.
(A)s the Fish and Wildlife Service itself acknowledged, climate change is expected to be an “increasing threat”—not a constant one. Thus, even if random departures from a simplistic model could be chalked up to “climate change,” the model failed to account for the one thing we know about climate change: that it will get worse over time.
Any result that finds a project may proceed is “simplistic.” They “know” “one thing.”
Finally, the project killer:
But we caution that when baseline conditions or cumulative effects are “already jeopardiz[ing] a species, an agency may not take action that deepens the jeopardy by causing additional harm.”
All threatened species are threatened further by construction projects. Period.
Read that and tell me that any project can survive that test. Indeed, tell me what infrastructure project can successfully jump through Fourth Circuit hoops embodied in these two decisions.
