Atlantic Coast Pipeline gets permission to begin North Carolina construction

The 600-mile Atlantic Coast Pipeline, the more than $6 billion natural gas project led by Dominion Energy, won approval to begin full construction in North Carolina today.

The decision by the Federal Energy Regulatory Commission comes amid a federal court challenge that seeks to halt construction of the hotly contested pipeline following a ruling by the U.S. Court of Appeals for the 4th Circuit in Richmond in May.

The court invalidated a key environmental review — finding it too vague to be enforced — that dealt with risks to sensitive species, a decision opponents of the project argued should have stopped it in its tracks.

However, FERC has allowed the pipeline, which will run from West Virginia through much of central Virginia and the eastern third of North Carolina to plow ahead in certain areas where it already has state approvals.

At issue in the federal court decision was the U.S. Fish and Wildlife Service’s “incidental take statement,” which sets limits for harming or killing certain sensitive species along the pipeline route, including bats, fish, mussels and a nearly extinct bumblebee, among others.

The 4th Circuit has yet to release its full opinion, but Dominion and its partners, which includes North Carolina utility heavyweight Duke Energy, have argued the decision only affects limited portions of the route.

In a letter to FERC last month, the Fish and Wildlife Service said the take statement was only relevant to habitat and species in Virginia and West Virginia.

This afternoon, the Federal Energy Regulatory Commission granted a notice to proceed to full construction for portions of the route in North Carolina.

“We have also reviewed the U.S. Fish and Wildlife Service’s June 28, 2018, letter and have confirmed that no additional consultation under the Endangered Species Act is required for the areas subject to this notice to proceed,” wrote David Swearingen, a chief in the agency’s gas division.

But Patrick Hunter, a North Carolina attorney with the Southern Environmental Law Center, which handled the 4th Circuit case on behalf of environmental groups, said the consultation required by the Endangered Species Act isn’t a piecemeal approach.

“It’s an all or nothing sort of deal,” Hunter said. He noted that several months after the Fish and Wildlife Service issued its biological opinion last year, the yellow lance mussel, which could be affected by pipeline work in Virginia and North Carolina, was officially listed as a threatened species.

“These piecemeal authorizations of a project that doesn’t have all the approvals it needs just doesn’t make  sense,” Hunter said. A request that the 4th Circuit halt construction in pending before the court, he added.

Aaron Ruby, a Dominion spokesman, did not immediately respond to a request for comment. Ruby told a West Virginia news outlet the FERC decision was “another major step forward for the project,” and “great news for the millions of consumers and businesses in our region who will soon have access to cleaner, lower-cost energy.”

However, in addition to objections over the use of eminent domain to seize land from property owners, risk of explosion, construction damage and opposition to new fossil-fuel infrastructure, major questions have arisen about the need for the pipeline, which has its origins in a 2014 joint request for proposals by Duke Energy and Piedmont Natural Gas and is intended mainly to serve utilities.

Cheryl LaFleur, a FERC commissioner, concluded that neither the ACP, nor the Mountain Valley Pipeline, which will run into southwest Virginia and potentially also into North Carolina, was in the public interest. Opponents have pointed to the ACP’s use of captive utility ratepayers to pay for the project and the 14 percent rate of return FERC has approved.

The project still lacks an effective water quality certification and approvals related to erosion, sediment and stormwater controls from Virginia. Later this summer, the state Water Control Board is expected to revisit whether a U.S. Army Corps of Engineers permit is adequate to protect Virginia waters from blasting, trenching and other construction methods that could dislodge sediment into streams, increase erosion and damage sensitive karst systems, porous formations that often link to springs and seeps.