The Federal Energy Regulatory Commission (FERC) ordered a halt to construction on a 600-mile pipeline designed to carry natural gas across West Virginia, Virginia, and North Carolina.
The order was made in response to a decision by a three-judge panel of the federal Fourth Circuit Court of Appeals in Richmond, Virginia vacating permits issued by the National Park Service (NPS) and the U.S. Fish and Wildlife Service (FWS) for the Atlantic Coast Pipeline (ACP).
Court Yanks Federal Permits
Environmental activist groups sued to halt ACP, challenging various required environmental permits for the pipeline’s route across federal parklands and for any potential incidental taking of endangered species.
The three-judge panel ruled decisions by the NPS and FWS to grant construction permits were “arbitrary and capricious,” saying FWS failed to show how it would protect five threatened and endangered species, such as the rusty-patched bumblebee and clubshell mussel, that could be affected by construction. The court also ruled NPS didn’t properly explain how the pipeline, which would cross the Blue Ridge Parkway in North Carolina, is consistent with the purpose of a national park, a condition the judges deemed necessary to grant the permit.
FERC Expects New Permits
Responding to the court’s decision, FERC halted work along the whole length of the $6 billion ACP on August 10.
In its letter to Atlantic and Dominion Energy Transmission, the partnership building ACP, FERC explained it believed NPS and FWS would ultimately reissue the permits but in the meantime it had to halt work on the pipeline in case the pipeline’s route would have to be altered.
“There is no reason to believe that the NPS … will not be able to comply with the Court’s instructions,” wrote Terry Turpin, director of FERC’s Office of Energy Projects, “and to ultimately issue a new right-of-way grant that satisfies the Court’s requirements, or that FWS will not be able to issue an Incidental Take Statement that does likewise.
“However, Commission staff cannot predict when NPS or FWS may act or whether NPS will ultimately approve the same route,” Turpin wrote.
Overriding Regulators’ Judgment
This is a case of federal judges substituting their judgment for that of executive branch regulators, says Bette Grande, a former North Dakota state representative and research fellow with The Heartland Institute, which publishes Environment & Climate News.
“This is a classic and all-too-common example of politically appointed judges substituting their own environmental activism for the judgment of federal agencies whenever those agencies don’t side with the environmental Left,” said Grande.
“In their decision, these three judges are substituting their opinion of what is necessary to protect the environment for the judgment of experts at the federal agencies designed and charged with protecting the environment, as if the judges knew more about complex park and endangered species management issues than professionals at NPS and FWS,” Grande said.
Joe Barnett ([email protected]) writes from Arlington, Texas.
Joe Barnett is a senior editor at The Heartland Institute and a policy advisor on budget and tax issues.
