Back in January we posted ten reasons why Friends of Nelson opposes the Atlantic Coast Pipeline and said you’d be hearing more about them. Now we’re happy to share our slide show on the 10 reasons – use it to help you to explain to family, friends, neighbors, and legislators why you oppose the ACP.
From Allegheny-Blue Ridge Alliance ABRA Update #271, April 9, 2020
Atlantic Coast Pipeline, LLC’s has contended to the Federal Energy Regulatory Commission (FERC) that bat surveys it conducted in 2015 should be considered “current.” This contention was challenged in an April 2, 2020, letter to FERC by the Southern Environmental Law Center. SELC pointed out that the surveys were valid only for two years, in accordance with established guidelines by the U.S. Fish and Wildlife Service. The SELC letter also a similar problem exists for mussel surveys done by the ACP in Virginia and North Carolina.
For a copy of the SELC letter to FERC, click here.
From Allegheny-Blue Ridge Alliance’s ABRA Update #270, April 2, 2020
The Federal Energy Regulatory Commission (FERC) has been urged to reject any request the agency might receive from Atlantic Coast Pipeline, LLC to bypass tree clearing restrictions under provisions of the Migratory Bird Treaty Act (MBTA). In a March 27, 2020 letter, the Southern Environmental Law Center (SELC) pointed out that FERC’s certificate for the Atlantic Coast Pipeline (ACP) called for compliance with MBTA provisions. The issue arises because of a February 2020 proposal by the U.S. Fish and Wildlife Service (FWS) to rollback protections for incidental takes against migratory birds. SELC filed comments with FWS on March 19 on behalf of ABRA and several of its member organizations, taking exception to the proposed FWS changes. The SELC letter points out that ACP had asked FERC in March 2018 for permission to bypass tree clearing restrictions, a request that FERC denied.
A copy of SELC’s letter to FERC, which includes its FWS comments, is available here.
The U.S. Fish and Wildlife Service (FWS) has proposed to largely eliminate protections against incidental take under the Migratory Bird Treaty Act (“MBTA”). The proposed rule would limit the reach of the MBTA’s take prohibitions to activities with the purpose of taking birds. For example, if a power washer cleaning a bridge destroyed bird nests or otherwise harmed migratory birds, that would be permissible so long as the power washer’s purpose was cleaning the bridge rather than harming the birds.
On March 19, 2020, the Southern Environmental Law Center, on behalf of over 50 organizations (inluding Friends of Nelson), submitted comments with a focus on the proposal’s implications for our Southeastern region. Their comments highlight examples in our region where the MBTA’s incidental take prohibitions have played an important role in conserving migratory birds, while also noting some key Southeastern species.
The letter argues that:
- The Proposed Regulation Governing Take of Migratory Birds Is Arbitrary and Capricious and Contrary to Law
- The Interpretation in the Proposed Rule Is Not Supported by the Statute
- The Interpretation in the Proposed Rule Is Not Supported by Treaties Relating to the MBTA
- Proximate Cause Limits the Reach of Strict Liability Under the MBTA
- FWS’s Scoping Notice Previews an Environmental Analysis That Shortcuts the Agency’s Obligations Under NEPA
- The Notice Fails to Forthrightly Disclose the Major Federal Action Properly Subject to Analysis Under NEPA and Forecasts a Predetermined Outcome
- The Agency Should Reset the Analysis of Alternatives
- Excluding Incidental Takes Will Have Significant Effects on Protected Migratory Birds That Must Be Analyzed Under NEPA
- Specific Projects That Compel Protections for Migratory Birds Due to Foreseeable Impacts (Atlantic Coast Pipeline, Mountain Valley Pipeline, Hampton Roads, Wind Energy Development, Atlantic Pelagic Longline Fisheries, Cape Hatteras National Seashore and Off-Road Vehicles)
- FWS Must Assess Impacts to Species Particularly Vulnerable to Incidental Takes
- FWS Must Analyze the Loss of Ecosystem Services and Economic Benefits of Birds in the Southeast
- FWS Must Consider the Consequences of its Rulemaking in the Context of Climate Change
The SELC letter concludes, “Reversing course on decades of protections under the MBTA has already caused, and will continue to cause, impacts of significant consequence to migratory birds across the Southeast and the United States. Migratory birds are in steep decline from multiple stressors; many are already at risk of extirpation and face an uphill road to recovery, even with protections against incidental take in place under the MBTA. FWS’s proposed rulemaking will hasten the decline of migratory birds and cannot be squared with the broad protections afforded by the MBTA. Rather than continue with this rulemaking, we urge Interior to withdraw the proposed rule, rescind Opinion M-37050, and work instead on developing an appropriate regulatory program addressing the foreseeable incidental killing and taking of migratory birds.”
On February 11, 2020, the Southern Environmental Law Center sent two letters, one to the the Army Corps of Engineers and one to the Fish and Wildlife Service, to challenge potential actions by them regarding the Atlantic Coast Pipeline. Both letters have been filed with FERC.
To the Army Corp of Engineers, SELC writes, “This letter is a notice that the United States Army Corps of Engineers, Norfolk District, cannot lawfully reinstate its suspended verification that the proposed Atlantic Coast Pipeline is authorized to be constructed using Nationwide Permit 12. The pipeline developer, Atlantic Coast Pipeline, LLC (Atlantic), expressly plans to violate at least one of the permit’s general conditions and has taken steps to do so, despite making contrary representations to the Corps and other regulators.” The letter then explains in detail that:
- Atlantic must comply with FEMA-approved local floodplain management requirements to be eligible for Nationwide Permit 12.
- Atlantic does not intend to comply with an applicable FEMA-approved floodplain management requirement in Nelson County.
- The Corps cannot reinstate the Norfolk Verification unless Atlantic complies with Nelson County’s floodplain ordinance, regardless of Atlantic’s lawsuit.
- The Norfolk Verification must be revoked unless Atlantic obtains variances or reroutes the pipeline.
The SELC letter notes that, “Unless Atlantic obtains variances or reroutes its proposed pipeline to avoid SFHAs [special flood hazard areas] in Nelson County, the Corps must revoke the Norfolk Verification and instruct Atlantic to seek an individual permit.”
Read SELC’s full letter to the Army Corps here.
Despite ongoing requests by citizen groups for FERC to issue a stop-work order for the ACP because so many key permits have been rejected, on February 10 FERC staff asked the U.S. Fish and Wildlife Service to reinitiate formal consultation so the proposed Atlantic Coast Pipeline project can resume construction. FERC is asking the FWS to develop a new Biological Opinion and Incidental Take Statement on the company’s proposed pipeline. Two previous Opinions and Take Statements have been vacated by the Fourth Circuit Court.
To the Fish and Wildlife Service, SELC writes, “Yesterday’s request for reinitiation of consultation, and discussion at the October 22, 2019, meeting as documented in the meeting minutes, suggest FWS is once again preparing to commit legal errors in an effort to approve this pipeline along Atlantic Coast Pipeline, LLC’s (Atlantic’s) preferred route.” The potential legal errors to which SELC refers are:
- FWS Cannot Complete Consultation on the Atlantic Coast Pipeline Without a Final Route
- FWS Must Fully Assess Impacts to Candy Darter and Its Critical Habitat
- FWS May Not Authorize Further Impacts to the Clubshell
The letter concludes, “To be clear, FWS may not authorize further impacts to this population, which it has already put on the brink of extinction. ‘Congress foresaw that [consultation under the Endangered Species Act] would, on occasion, require agencies to alter ongoing projects in order to fulfill the goals of the Act.’ Tenn. Valley Auth. v. Hill, 437 U.S. 153, 186 (1978). This is one of those occasions.”
Read SELC’s full letter to the Fish and Wildlife Service here.
On January 26, 2020, the Charleston Gazette-Mail reported on a proposed recovery plan for the endangered rusty patched bumble bee. The U.S. Fish and Wildlife Service (USFWS) is seeking public comment on a draft plan for recovery of the species listed as endangered under the Endangered Species Act (ESA) in 2017. The draft plan outlines general management actions aas well as criteria that would indicate when the bee may be considered recovered and eligible to be removed from the endangered listing.
According to the Gazette-Mail article, “In 2018, scientists from the Virginia Department of Conservation found 20 of the bees in surveys conducted in Bath and Highland counties, through which the Atlantic Coast Pipeline is routed after crossing into Virginia from Pocahontas County. In a biological opinion allowing the ACP to receive a permit for building the pipeline through West Virginia and western Virginia, the USFWS concluded that populations of the rusty patched bumblebee and three other endangered species in the project area were unlikely to be harmed by pipeline work. The Southern Environmental Law Center sued on behalf of three conservation groups who challenged Fish and Wildlife’s assessment, and in May 2018, the Fourth U.S. Circuit Court of Appeals ruled in their favor, vacating the pipeline’s construction permit. Fish and Wildlife issued a new permit in September 2018, which was again challenged by the same plaintiffs, whose contentions were once again viewed favorably by the court. Implementation of the permit was again postponed, pending the outcome of arguments scheduled for May 2019.”
After those May arguments, the Fourth Circuit issued an opinion in July 2019 saying the USFWS decision “arbitrarily and capriciously reached its no-jeopardy conclusions” for the rusty patched bumblebee, and that it “runs counter to available evidence, relies on data without providing a meaningful basis for that reliance, fails to consider the species’ status as a whole.”
The Gazette-Mail says, “The draft recovery plan for the rusty patched bumblebee includes improving the quality and quantity of habitat near established colonies, improving connectivity between colonies and reintroducing the bumblebees to now-unoccupied sites within the insect’s former range. In order for the population to recover enough to be removed from Endangered Species Act protection by 2059, 159 populations — just over 10 percent of the pre-decline number of populations — would have to be maintained in five conservation zones.”
The draft recovery plan is available at https://www.fws.gov/midwest/endangered/insects/rpbb/.
Public comments will be accepted through Feb. 24. Instructions on how to submit comments can be found at https://www.regulations.gov/ using docket number FWS-R3-ES-2019-3803.