On August 6, 2018, the three-judge panel of the 4th Circuit Court of Appeals released a unanimous opinion on its May 15 Order that vacated the Fish and Wildlife Service’s biological opinion for the Atlantic Coast Pipeline. The long-awaited opinion, written by Chief Judge Roger L. Gregory, also vacated the Right-of-Way permit issued by the National Park Service for drilling under the Blue Ridge Parkway.
The Court said the Fish and Wildlife’s “taking order,” authorizing the pipeline to “‘take’ — i.e. kill, harm, or harass — five species that are listed as threatened or endangered” is “arbitrary and capricious” because the so-called “take limit” is unenforceable.
The Court also said that because the National Park Service failed to explain how the ACP crossing of the Blue Ridge Parkway “is not inconsistent with the purposes of the Parkway and the overall National Park System,” that permit is also “arbitrary and capricious.”
Defenders of Wildlife, the Sierra Club, and the Virginia Wilderness Committee, represented by the Southern Environmental Law Center, had challenged both the Fish and Wildlife Service and the National Park Service decisions.
The Court’s decision to vacate the National Park Service permit for the ACP to cross the Blue Ridge Parkway was unexpected. Thanks to Friends of Nelson’s Marilyn Shifflett, who has provided the following summary quotes from the decision:
“A visual impact study conducted by ACP and overseen by NPS concluded that the corridor would be visible from at least one key observation point along the Parkway, thus significantly decreasing the park’s scenic value. J.A. 1020. Specifically, the analysis concluded that ‘[v]iews of the ACP corridor from the Three Ridges overlook . . . would likely be inconsistent with NPS management objectives, given the proximity to the viewer, the axial nature of the view, and the corridor’s contrast with the surrounding forest.’
In other words, NPS enabled and virtually ensured the alleged harm to the Parkway’s aesthetic value.”
“In this case, if this Court were to invalidate the NPS permit as requested, the pipeline cannot exist in its proposed form with its current authorizations and would have to be re-authorized with a new permit or possibly a new route to proceed.”
“Even assuming that either § 460a-3 or § 460a-8 confers general authority on NPS to grant oil and gas rights-of-way through Blue Ridge Parkway property, we conclude that NPS has acted arbitrarily and capriciously by failing to explain why ACP’s pipeline is not inconsistent with parkway purposes.”
“The Blue Ridge Parkway also has its own conservation and preservation purpose, according to NPS’s General Management Plan for the Parkway. Under the Plan, the Parkway’s specific purposes are to “connect . . . national parks by way of a ‘national rural parkway’—a destination and recreational road that passes through a variety of scenic ridge, mountainside, and pastoral farm landscapes”; “conserve the scenery and preserve the natural and cultural resources of the parkway’s designed and natural areas”; “provide for public enjoyment and understanding of the natural resources and cultural heritage of the central and southern Appalachian Mountains”; and “provide opportunities for high quality scenic and recreational experiences along the parkway and in the corridor through which it passes.” The Blue Ridge Parkway Organic Act then forbids NPS from authorizing any right-of-way that is not consistent with those parkway purposes. See 16 U.S.C. §§ 460a-3, 460a-8. Thus, the right-of-way permit in this case would violate statutory requirements if not accompanied by a valid agency determination that the pipeline is not inconsistent with the Parkway’s scenic value and the public’s enjoyment thereof. ”
“Having concluded that both FWS and NPS erred in issuing their respective authorizations, we turn to the final question of remedy. Respondents argue that this Court lacks authority to vacate the agency actions under the Natural Gas Act. However, Respondents’ position is contrary to the plain text of the Natural Gas Act. The judicial review provision at issue provides, If the Court finds that such order or action is inconsistent with the Federal law governing such permit and would prevent the construction, expansion, or operation of the facility subject to section 717b of this title or section 717f of this title, the Court shall remand the proceeding to the agency to take appropriate action consistent with the order of the Court.
Because FWS and NPS have both granted authorizations in contravention of their respective statutory requirements, we conclude that the correct remedy is to vacate the ITS and the right-of-way permit, respectively.”
According to Reuters news coverage, Dominion’s Aaron Ruby says, “We believe the court’s concerns can be promptly addressed … without causing unnecessary delay.”
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