FERC Responds to 4th Circuit Court Ruling

Late on Wednesday May 16, 2018, the Federal Energy Regulatory Commission responded to the May 15 decision by the U.S. Court of Appeals Fourth Circuit to halt construction on the Atlantic Coast Pipeline (see story below). FERC wrote to Dominion indicating it would agree to the company’s commitment not to proceed with construction on the ACP in any areas where listed protected species may be present:

Atlantic Coast Pipeline, LLC (Atlantic) has informed Commission staff that it will not proceed with construction in any areas where such activities may affect listed species covered by the FWS’ Incidental Take Statement for the project. Atlantic should, within 5 days, file documentation that specifically identifies by milepost/stationing the habitat areas that will be avoided with respect to each of the listed species, and confirms the company’s commitment to avoid construction in these areas.

​The full text of the FERC letter is here.

According to a May 16 article in the Richmond Times-Dispatch (Did court ruling stop Atlantic Coast Pipeline construction? Depends on whom you ask), “The Southern Environmental Law Center, which argued the case on behalf of the Sierra Club, Defenders of Wildlife and the Virginia Wilderness Committee, says the court’s action undermines every other federal approval the project has received, from the FERC authorization to approvals by the U.S. Army Corps of Engineers and the U.S. Forest Service. ‘You can proceed only if you have a valid incidental take permit,’ said D.J. Gerken, an attorney with the law center. ‘You’re missing a fundamental building-block authorization on which all the others are based. …. According to the Federal Energy Regulatory Commission’s own certificate, FERC’s previous notices issued to Atlantic Coast Pipeline developers to proceed are no longer valid,’ Gerken said. ‘If what FERC is now saying is that developers can now proceed to construction without the Fish and Wildlife Service’s valid permit, it is undermining its own requirements.'”