By John McFerrin
The United States Court of Appeals for the Fourth Circuit has once again stopped the Atlantic Coast Pipeline because of the failure to comply with the Endangered Species Act. It held that the United States Fish and Wildlife Service had been arbitrary in approving plans for protecting endangered species.
Background
The Endangered Species Act was enacted to protect and conserve endangered and threatened species and their habitats. Whenever any federal agency is faced with an application for a permit for construction or other activity, it is required to determine if the activity is likely to jeopardize the continued existence of” a listed species or result in the destruction or adverse modification of designated critical habitat.
To make this determination in the case of the Atlantic Coast Pipeline, the Federal Energy Regulatory Commission (FERC) consults with the Fish and Wildlife Service. The Fish and Wildlife Service then issues what is called a Biological Opinion. It states the Fish and Wildlife Service’s opinion on whether or not the proposed activity is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat.
A determination that an activity will harm an endangered species does not mean that the activity is automatically prohibited. If the activity threatens the continued existence of a species then it is prohibited. If it harms some members of an endangered species but does not jeopardize the continued existence of that species, then the Fish and Wildlife Service may issue what is known as an incidental take permit.
An incidental take permit allows someone to “take” a limited number of individuals of an endangered species if the taking is incidental to another activity and not the goal of the activity. “Take” is defined as the “harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting of a listed species”, or any “attempt to engage in such conduct.” It really means kill but if Congress had just said “kill” the Courts would have had to deal with future hair splitters who argued that they could pester an endangered species six ways from Sunday but if there was no corpse there was no violation.
What happened here—Round I
In the case of the Atlantic Coast Pipeline, when the Federal Energy Regulatory Commission approved the pipeline in the fall of 2017, it made its approval conditional upon the pipeline getting all required approvals from any other agency. Shortly after that, the Fish and Wildlife Service issued a Biological Opinion in which it concluded that the pipeline was not likely to jeopardize the existence of any of the affected listed species but it was likely to result in a “take” of some individuals. It also issued an Incidental Take Permit authorizing the taking of “a small percent of” the species.
Several citizen groups challenged this decision before the United States Court of Appeals for the Fourth Circuit. In May, 2018, the Court vacated the Incidental Take Permit. 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 happened here—Round II (the current round)
After the decision in the first round, the Fish and Wildlife Service tried again. After nineteen days of additional deliberation Fish and Wildlife Service issued a new Biological Opinion and Incidental Take Permit. The Fish and Wildlife Service determined that pipeline construction would not jeopardize the rusty patched bumble bee or the clubshell. It also imposed take limits on the Indiana bat and the Madison Cave isopod.
This time around, the Court concluded that the Fish and Wildlife Service had been arbitrary and capricious in its findings and vacated the agency action.
If there is a single theme that runs through the decision it is that the Fish and Wildlife Service just got in a hurry and slapped its opinion together without considering all the available data. The Court says:
We cannot ignore that it took FWS a mere 19 days to issue the 2018 Biological Opinion and Incidental Take Statement after FERC resumed formal consultation with the agency following our first decision in this matter. In fast-tracking its decisions, the agency appears to have lost sight of its mandate under the ESA: “to protect and conserve endangered and threatened species and their habitats.” . . . This mandate has “priority over the ‘primary missions’ of federal agencies.
The Court also quoted a Fish and Wildlife Service document on the need to “fast-track” its findings:
Our internal direction is that we can’t require surveys and will not make further requests for surveys that interfere with applicant’s project schedule since these are priority fast-track projects, and we will not state that we have insufficient information to initiate consultation and will not delay initiation of consultation based on lack of baseline/species survey data.
Against this background, the Court examined the evidence as it applied to each species. With the Rusty Patch Bumble Bee, it noted that the species is severely imperiled. Its numbers have declined precipitously in the past few years and the remaining colonies are few and small. Some were observed foraging along the pipeline route. One of the ways they can increase is that each colony can produce several queens. The queens go off and hibernate and then start new colonies in the spring. In spite of the fact that the Atlantic Coast Pipeline was going to crush a colony (and its potential to start new colonies) the Fish and Wildlife Service found that it was “not likely to negatively impact the fitness or survival of the population,”
With the clubshell (a type of mussel) the Court focused most upon the population in Hackers Creek, a tributary of the Monongahela River. The clubshell has been listed as endangered since 1993; there is a population in Hackers Creek. As currently projected, 6.4 miles of pipeline construction right-of-way and 11.9 miles of access roads will exist in the upstream drainage area of Hackers Creek. Six tributaries of Hackers Creek will also be crossed by the pipeline.
The clubshell is particularly vulnerable to siltation. When there is too much silt in the water it can close its gills. The gills can become coated with silt so that it lacks oxygen. The Fish and Wildlife Service concluded that the Atlantic Coast Pipeline would not negatively impact the fitness or survival of the population.
The Court disagreed with that finding. It largely relied upon its determination that the Fish and Wildlife Service had relied upon old data that did not appear to be reliable.
For both the Indiana Bat and the Madison Cave Isopod, the Fish and Wildlife recommended approval of an Incidental Take Permit. Such a permit is appropriate when the activity (the pipeline, in this case) will “take” some bats or isopods but the taking will only be incidental to the activity, not the purpose of the activity.
The Court agreed that a permit might be appropriate in this situation. In spite of this, the Court vacated the Fish and Wildlife approval. To be appropriate, the take allowed must be based upon some cogent connection between the data and the limit. It must also consider all relevant and available data. The Court determined that the Fish and Wildlife Service did not meet these requirements.
What’s next?
The Fish and Wildlife Service tries again. In its statements following the decision, Dominion made clear that it does not consider this a fatal setback. Rather, it considers this something that it can cooperate with the Fish and Wildlife Service to fix. It assumes that the Fish and Wildlife Service will review its Biological Opinion and Incidental Take Statement and issue new ones more firmly based in data and more clearly articulating the basis for its decision.
Pipeline Update
So how stands the Atlantic Coast Pipeline? Is it still moving forward?
The short answer is that, as of now, it is not moving forward on the ground. The project is shut down, stymied by a series of unfavorable court decisions (vacated or suspended permits). Many would see the unfavorable court decisions as a result of the developers’ corner cutting approach to planning and environmental compliance. After all, no court has ever said, “Stop! This whole thing is illegal. Take your pipeline and go home!”
Instead, Courts have assumed that the pipeline was possible. So far the developers have regularly lost in Court because they have sought to cut corners, to fast-track permit review. The Courts have responded by telling the developers to slow down, do the analysis, etc. before rushing ahead.
In the long run the developers may decide that the task is just too daunting. They may conclude that, if someone makes them comply will all laws, building this pipeline through this terrain is not possible.
They have not, however, said that. We remain with an Atlantic Coast Pipeline where there is no construction right now and developers determined to go ahead.