Circuit Court Say Construction on Atlantic Coast Pipeline Must Cease
On August 6, 2018, the United States Court of Appeals for the Fourth Circuit issued an order vacating a right-of-way-permit by the Department of the Interior’s National Park Service.
RICHMOND, Va. (WVIR) - Construction on the Atlantic Coast Pipeline is stopping, at least for now.
Terry Turpin, the director of the Office of Energy Projects, says in a letter that construction activity must cease immediately.
He says developers do not have the right-of-way or temporary-use permits to cross federally owned lands following a decision on August 6 by the United State Fourth Circuit Court of Appeals to vacate them.
Turpin also says the pipeline must provide an interim right-of-way and work area stabilization plan for review within five days.
Letter from the Federal Energy Regulation Commission:
On August 6, 2018, the United States Court of Appeals for the Fourth Circuit issued an order vacating a right-of-way-permit by the Department of the Interior’s National Park Service (NPS) authorizing the construction of the Atlantic Coast Pipeline (ACP) across the Blue Ridge Parkway and providing detailed reasoning for its May 15, 2018 order vacating the Incidental Take Statement issued by the U.S. Fish and Wildlife Service (FWS) with respect to the project.
In light of this development, Atlantic Coast Pipeline, LLC (Atlantic) has not obtained the rights-of-way and temporary use permits from the NPS needed for ACP to cross certain federally owned lands and lacks an Incidental Take Statement for the project.
There is no reason to believe that the NPS, as the land managing agency, will not be able to comply with the Court’s instructions and to ultimately issue a new right-of-way grant that satisfies the Court’s requirements, or that FWS will not be able to issue an Incidental Take Statement that does likewise. However, Commission staff cannot predict when NPS or FWS may act or whether NPS will ultimately approve the same route.
Should NPS authorize an alternative crossing location, Atlantic may need to revise substantial portions of the ACP route across non-federal or federal lands, possibly requiring further authorizations and environmental review. Accordingly, allowing continued construction poses the risk of expending substantial resources and substantially disturbing the environment by constructing facilities that ultimately might have to be relocated or abandoned.
Atlantic and Dominion Energy Transmission, Inc. (DETI) are hereby notified that construction activity along all portions of the ACP and Supply Header Project and in all work areas must cease immediately, with the exception of any measures deemed necessary by appropriate agencies such as NPS and the U.S. Forest Service, or by FERC staff to ensure the stabilization of the right-of-way and work areas.
Within 5 days, Atlantic and DETI must provide an interim right-of-way and work area stabilization plan for review and written approval by the Director of the Office of Energy Projects or his designee.
In addition, should Atlantic and DETI believe that any portions of the project, other than the Blue Ridge Parkway Crossing and areas in which species or habitat covered by the Incidental Take Statement are present, have independent utility such that they can provide service in the absence of portions of the project in the areas described above, they may, within 3 days, file supporting information to that effect with the Commission.
Commission staff intends to review the need for this stop work notification in light of further actions that the NPS or FWS will take with respect to the issues raised in the Court’s opinion and information provided by Atlantic and DETI, and stand ready to assist to achieve a prompt resolution.
Statement from Atlantic Coast Pipeline Spokesperson Aaron Ruby:
We are already working with the key agencies to resolve the issues in FERC’s order so we can resume construction as soon as possible. We are confident these issues can be resolved quickly without causing unnecessary delay to the project.
FERC has given us the opportunity to provide evidence of any portions of the project that serve an independent public need and are not impacted by the recent court rulings. We will respond with strong evidence demonstrating the independent public need to proceed with construction of the Supply Header project, as well as portions of the Atlantic Coast Pipeline in West Virginia, eastern Virginia and North Carolina. These portions of the project will serve home heating and manufacturing needs in eastern Virginia and North Carolina and are not affected by recent court rulings.
With respect to the National Park Service approval to cross the Blue Ridge Parkway, we are already working with the agency to correct the errors and omissions identified by the court. We believe the agency can promptly reissue the permit based on the extensive public record and mitigation measures already in place.
With respect to the U.S. Fish & Wildlife Service, we have already provided the agency with all of the information necessary to issue a revised Incidental Take Statement. We anticipate the agency will do so shortly.
The Atlantic Coast Pipeline has been the most thoroughly reviewed infrastructure project in the history of our region. The recent action by the courts and FERC are further evidence of this unprecedented scrutiny and the high standard that is being applied to this project.
The Atlantic Coast Pipeline is critical to the economic and environmental future of our region, and we are working as quickly as we can to get construction back underway and avoid unnecessary delays. Public utilities in our region are depending on this infrastructure to meet the real and urgent needs of the millions of customers they serve.
Delaying this infrastructure will force consumers and businesses to pay higher energy costs. It will slow down the transition to cleaner energy, and it will deprive public utilities of the reliable energy they need to heat the homes of a growing population and power local businesses.