Fourth Circuit strikes again: Atlantic Coast Pipeline permit vacated

By: - August 6, 2018 6:01 pm

The Lewis F. Powell Jr. federal courthouse in Richmond is home to the U.S. Court of Appeals for the 4th Circuit, which has been a key battleground over the Atlantic Coast and Mountain Valley pipelines. (Ned Oliver/ Virginia Mercury)

In the latest in a string of decisions that have struck down key approvals for the Mountain Valley and Atlantic Coast pipelines, the Richmond-based U.S. Court of Appeals for the 4th Circuit has thrown out Atlantic’s permit to cross the Blue Ridge Parkway.

The court ruled that the National Park Service’s decision to allow the pipeline under the parkway was “arbitrary and capricious.”

“Here, the agency decision is not accompanied by any explanation, let alone a satisfactory one,” the panel of judges wrote. “We find this lack of explanation particularly troubling given the evidence in the record indicating that the presence of the pipeline is inconsistent with and in derogation of the purposes of the parkway and the park system.”

The ruling comes more than two months after the same court invalidated a key approval from the U.S. Fish and Wildlife Service for the Atlantic Coast Pipeline and a little more than a week after it vacated a permit allowing the Mountain Valley Pipeline to cross U.S. Forest Service land. The Federal Energy Regulatory Commission ordered a halt to MVP construction Friday.

A spokesman for the Dominion Energy-led Atlantic Coast Pipeline did not respond to a request for comment Monday. However, the 4th Circuit judges made it clear that proceeding with construction now would place the project in violation of its FERC approval.

“As noted previously, FERC’s authorization for ACP to begin construction is conditioned on the existence of valid authorizations from both FWS and NPS,” the judges wrote. “Absent such authorizations, ACP, should it continue to proceed with construction, would violate FERC’s certificate of public convenience and necessity.”

Mountain Valley Pipeline, planned to be built from West Virginia into Pittsylvania County is led by EQT Midstream Partners of Pittsburgh, has already been flagged for a series of environmental violations in both states. The longer Atlantic Coast Pipeline is planned to run 600 miles from West Virginia into North Carolina and will carve through the center of Virginia.

“This is an example of what happens when dangerous projects are pushed through based on politics rather than science,” said Southern Environmental Law Center attorney DJ Gerken in a statement. “This pipeline project was flawed from the start and Dominion and Duke’s pressure tactics to avoid laws that protect our public lands, water and wildlife are now coming to light.”

The decision is sure to focus more attention on the meeting later this month of the Virginia State Water Control Board, which is weighing whether a U.S. Army Corps of Engineers permit is adequate to protect the hundreds of water crossings the pipelines will make in Virginia from blasting, trenching, drilling and other construction methods.

The meeting will come after widely shared photos of Mountain Valley Pipeline’s failures to control sediment, which have fouled nearby waterways.

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Robert Zullo
Robert Zullo

Robert spent 13 years as a reporter and editor at weekly and daily newspapers and was previously editor of the Virginia Mercury. He was a staff writer and managing editor at Worrall Community Newspapers in Union, N.J., before spending five years in south Louisiana covering hurricanes, oil spills and Good Friday crawfish boils as a reporter and city editor for the The Courier and the Daily Comet newspapers in Houma and Thibodaux. He covered Richmond city hall for the Richmond Times-Dispatch from 2012 to 2013 and worked as a general assignment and city hall reporter for the Pittsburgh Post-Gazette from 2013 to 2016. He returned to Richmond in 2016 to cover energy, environment and transportation for the Richmond Times-Dispatch. Contact him at [email protected]