By John McFerrin

The United States Court of Appeals for the Fourth Circuit has ruled that the Incidental Take Permit for the Atlantic Coast Pipeline is void because the limits set by the Fish and Wildlife Service’s Incidental Take statement are “so indeterminate that they undermine the Incidental Take Statement’s enforcement and monitoring function under the Endangered Species Act.”

The Endangered Species Act prohibits any “take” of a species which is listed as endangered.  “Take” is defined in the Endangered Species Act (ESA) as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect any threatened or endangered species. Harm may include significant habitat modification where it kills or injures a listed species through impairment of essential behavior (e.g., nesting or reproduction).

While directly harming any endangered species is illegal, there are circumstances in which harm is allowed if the harm is not the focus of the activity but rather is incidental to the activity.  In the case of the Atlantic Coast Pipeline, the goal of construction is not to “hunt, shoot, wound, kill, trap, capture, or collect” an endangered species. Rather, the developers want to build a pipeline, endangered species are in the way, and they may well be harmed by the construction.

Situations such as this are addressed by an Incidental Take Permit. An incidental take permit is required when non-Federal activities will result in a “take” of threatened or endangered wildlife. A habitat conservation plan (HCP) must accompany an application for an incidental take permit. The purpose of the habitat conservation planning process associated with the permit is to ensure there is adequate minimizing and mitigating of the effects of the authorized incidental take. The purpose of the incidental take permit is to authorize the incidental take of a listed species, not to authorize the activities that result in take.

The pipeline’s construction imperils eight threatened or endangered species including a fish called the Roanoke Log Perch, two types of bats, and the Rusty Patched Bumble Bee that United States Fish and Wildlife Service added to the endangered species list just last year.   In such a situation the developers would have to apply for an Incidental Take Permit and prepare a Habitat Conservation plan.  The Fish and Wildlife Service would then set out a limit on the take and how the species would be protected. The appeals court panel found the agency’s limit on the “take” — which includes harassing, harming, wounding, killing, etc. — of at-risk species was too vague and didn’t satisfy basic legal standards.

What does this mean?

Nobody knows for sure what it means, and the one who does know is not talking.

The developers are approaching this as a little bump in the road, a Rusty Patch Bumble Bee sized bump in the road.  They say that endangered species do not live all along the proposed pipeline route.  The developers intend to mark off the areas where those species are found.  They will then avoid construction in those areas while they get this all straightened out.  They will, however, continue construction in other areas.

The opponents of the pipeline disagree.  They say that a legally sufficient Incidental Take Permit is a necessary component of the approval of the pipeline.  Without this, the approval of the pipeline is invalid and there should be no construction anywhere.

This confusion comes about because of the number of agencies involved and the relationship between those agencies.  The big kahuna on the pipeline is the Federal Energy Regulatory Commission (FERC).  It gets to say whether the pipeline as a whole is approved.  At the same time, other agencies have a role.  The United States Forest Service has to approve crossing of the National Forests.  The United States Fish and Wildlife Service has to review its impact on endangered species and, if appropriate, issue an Incidental Take Permit.  The United States Army Corps of Engineers has to approve stream crossings; states it goes through have to review it for violations of water quality standards.

The Federal Energy Regulatory Commission (FERC) has approved the pipeline. When it did so, however, it made the approval conditional upon approval from the other agencies which have a role. It said, if effect, that construction is approved once the developers have approval from the Forest Service, the Fish and Wildlife Service, the Corps of Engineers, etc.  The opponents of the pipeline say that this approach makes the Incidental Take Permit one of the building blocks of the FERC approval.  Since, as the Court ruled, the developers do not have a proper Incidental Take Permit, then they have no properly issued FERC approval. All construction should halt.

FERC has not said what it thinks, whether all construction should stop, etc. It doesn’t help in the confusion that the Court has not yet done a full opinion.  All it has issued so far is a single page order stating its conclusion that the limits set by the Fish and Wildlife Service are so indeterminate that they do not meet the requirements of the Endangered Species Act.  The Court promised a full opinion later; when that comes it may, or may not, shed some light on whether all construction should stop.

The big picture

This is just one more corner that the developers have cut on this project. Somebody called them on it; now they will have to go back and fix it.  It is not the kind of thing that would kill the project.  It would have a role in killing the project only if it is part of a project wide pattern.  If, through the efforts of citizens, the diligence of courts, etc. the developers realize that the entire project must be done on the square, then it may become uneconomical to continue.