FERC allows construction to resume on Atlantic Coast Pipeline

The Federal Energy Regulatory Commission gave permission Monday for construction to resume on the Dominion Energy-led Atlantic Coast Pipeline.

Work on the 600-mile natural gas pipeline, which is planned to run though West Virginia, Virginia and eastern North Carolina, had been halted after a pair of decisions by the U.S. Court of Appeals for the 4th Circuit in Richmond tossed key approvals by federal agencies for the project.

However, those agencies, the U.S. Fish and Wildlife Service and the National Park Service, submitted revised authorizations in the past week.

“Construction activities along project areas which had previously received a notice to proceed may now continue,” FERC wrote in a letter Monday, meaning that work can resume in West Virginia and North Carolina.

The project has been opposed because of its use of eminent domain to seize property from landowners, the threat continued fossil fuel dependence poses to climate change, environmental degradation from construction, questions about whether the gas is really needed and the risk of explosion.

And the ACP does not yet have authorization to begin full construction in Virginia, though trees have been cleared along parts of the route here.

The court had ruled that the National Park Service’s decision to allow the pipeline under the Blue Ridge Parkway was “arbitrary and capricious,” and that evidence in the record indicated “that the presence of the pipeline is inconsistent with and in derogation of the purposes of the parkway and the park system.”

The court also found that the Fish and Wildlife Service’s “incidental take statement,” which authorizes killing or harming threatened and endangered species along the route, was too vague to be enforced.

At first blush, the new authorizations both agencies filed in the past week appear to suffer from the same problems, said D.J. Gerken, an attorney with the Southern Environmental Law Center in Asheville, N.C., who is working on the case.

“The Park Service right of way is almost the same document,” Gerken said. “It’s very disappointing.  … It sure looks like more of the same, which is these agencies making political decisions rather than fact-based ones.”

A Dominion Energy spokesman did not immediately respond to a request for comment. Gerken, who was among the attorneys representing environmental groups that won the decisions vacating the permits, said opponents would review their options.

“All of these federal agencies with responsibility to protect public resources moved too fast on a political timetable. This is entirely consistent with that approach. And that’s what got them in trouble last time,” he said.

Tamara Young-Allen, a FERC spokeswoman, said the commission relies on the agencies to determine that they have fixed the deficiencies the court found.

“We were told by both agencies that the company now has the authorizations that they need,” she said. “The orders on remand that we have issued are in compliance with the court’s decisions. If others disagree, then they’re the ones who take us back to court.”

The new decisions by the federal agencies are also subject to court review, but how much pipe will be put in the ground by the time the case gets before judges remains to be seen.

“There is no question that these pipeline developers deliberately race the courts,” Gerken said. “So no matter how bad the legal violations are, the project is well under way before the courts have an opportunity to review it. This is baked into their business model. It doesn’t matter if it’s wrong as long as it’s fast.”

Additional challenges to the Atlantic Coast Pipeline are pending before the 4th Circuit, including the underlying FERC approval.

FERC’s letter to Atlantic Coast Pipeline.