On May 22, 2018, the Southern Environmental Law Center (SELC) and Appalachian Mountain Advocates filed a letter with FERC, on behalf of its respective client groups (most of whom are Allegheny-Blue Ridge Alliance members), a letter setting forth the reasons why FERC should not allow construction of the ACP to proceed. The SELC filing noted that the Fourth Circuit has yet to issue an opinion explaining the parameters of its May 15 decision vacating the U.S. Fish and Wildlife Service’s (FWS) biological opinion on the project as it relates to the Endangered Species Act (ESA), and pointedly noted the liability FERC would be taking on if it allows ACP to continue with construction prior to the completion of the Section 7 consultation Fish and Wildlife Service (FWS).
Among the highlights of the filing:
- Because FWS cannot develop the new incidental take statement until the 4th Circuit’s full opinion comes out there is no way to know if a re-route is going to be required: “FWS may have to revisit its jeopardy analysis for some or all of these species. Its revisited jeopardy analysis could require route modifications as a reasonable and prudent alternative to affecting the species. Additionally, if FWS is unable to develop enforceable take limits for inclusion in an incidental take statement, it may require the pipeline to simply avoid certain species.” (Of course this potential also will pertain to the Army Corps’ NWP12 and the USFS Special Use Permit.)
- They caution FERC not to jump the gun: “FERC also should not assume that it knows what remedy the court will order, nor FWS’s response to it. For instance, FERC cannot know if FWS will have to consider additional habitat areas not assessed in the original biological opinion and incidental take statement in order to comply with the court’s opinion. FERC puts itself at considerable risk by assuming it or Atlantic can predict what the court will order and how that will play out on the ground. “
- They also call FERC out on still not initiating a formal consultation for the yellow lance mussel, which might also result in the need for route changes: “Allowing Atlantic to proceed with pipeline construction also risks running afoul of the Endangered Species Act’s prohibition on ‘any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures’ after initiation of consultation. 16 U.S.C. § 1536(d). FERC should not allow Atlantic to encroach upon the edge of habitat for endangered and threatened species in an effort to secure its preferred pipeline route, foreclosing alternative routes or other measures FWS determines necessary to protect those species.”
- Regarding ACP’s plan to continue construction in areas that do not contain the species in question: “Allowing pipeline construction to proceed outside areas Atlantic identified as used by endangered species could dangerously lock FERC and Atlantic into a pipeline route that FWS’s analysis may require it to change. That is part of the reason the ESA prohibits ‘any irreversible or irretrievable commitment of resources’ during consultation – to ensure the action agency does not wed itself to a proposal that it ultimately cannot complete.”
- Additionally, SELC points out that it is ratepayers that will bear the financial risk if FERC allows ACP to continue construction at this time and an expensive re-route becomes necessary. They go on to pointedly drive home the “need” issue: “There is no apparent reason to rush this project forward with one key approval invalidated and challenges to several others pending. Undoubtedly, Atlantic wants to move forward with construction because the fundamental problem with the pipeline – that it is not a public necessity – is becoming more obvious with time. The demand for new electric power generation in Virginia and North Carolina is not growing and existing pipelines and other existing gas infrastructure can meet the demand that does exist much more cost effectively than a new, greenfield project. FERC should not be concerned that a stay of pipeline construction will harm utility customers in Virginia and North Carolina. That alarmist message from Atlantic is unfounded. Allowing construction to proceed also risks exposing FERC and Atlantic to criminal and civil penalties under the Endangered Species Act. When a federal agency such as FERC authorizes an action that results in take of species, that federal agency can be held liable for any unauthorized take. Without a valid incidental take statement, pipeline construction cannot cause take of a single animal, anywhere along the pipeline route, without risking serious penalties.“