By John McFerrin

            The Mountain Valley Pipeline faces another setback, this time over a failure by the Fish and Wildlife Service to comply with the Endangered Species Act.  The United States Court of Appeals for the Fourth Circuit has ruled that the Fish and Wildlife Service did not properly evaluate threats to the endangered Candy Darter and Roanoke Logperch.

            The Federal Energy Regulatory Commission (FERC) makes the overall decision on whether the pipeline goes forward.  The law assumes that FERC does not know enough about endangered species to make an informed opinion on the effect the pipeline would have.  It requires that the Fish and Wildlife Service issue what is called a Biological Opinion, giving its view on whether the pipeline “is likely to jeopardize the continued existence of the [endangered] species.”

            In this case, the Fish and Wildlife Service issued a Biological Opinion.  It determined that the Mountain Valley Pipeline would affect the Virginia Spirea, the Roanoke Logperch, the Candy Darter, the Indiana Bat, and the Northern Long-eared Bat.  It ultimately concluded, however, that the Pipeline would not jeopardize the existence of these species.

            A group of citizen organizations—including the West Virginia Highlands Conservancy—appealed the decision by the Fish and Wildlife Service to the Court of Appeals.  This decision invalidating the Fish and Wildlife Service’s Biological Opinion was the result.

            As proposed, the Mountain Valley Pipeline would stretch 302 miles from West Virginia into Virginia.  It would cross more than 11,000 streams and disturb 6,951 acres of land, including 4,168 acres of soils that have potential for severe water erosion.  Nearly one quarter of the proposed pipeline will cross slopes that are greater than 30%.

            Both the Candy Darter and the Roanoke Logperch are particularly susceptible to erosion and the resulting siltation.  The Roanoke Logperch makes its living rummaging around on gravely stream beds, flipping over little rocks, gobbling up whatever bugs it finds.  It lays its eggs on gravel stream beds as well.  If the gravel is covered with silt, it can’t do either of these things.

            The Candy Darter is also intolerant of sedimentation.  Its historic decline has likely been related to excessive sedimentation.  It faces the additional problem of being a homebody.  Faced with excessive sedimentation, the Roanoke Logperch will move to another area if possible.  The Candy Darter will not.

            In cases such as this, involving technical matters, it is the general policy of the courts to defer to agency expertise.  If the agency—such as the Fish and Wildlife Service—carefully considered all the relevant information, the court will not second guess the conclusion the agency comes to.

            While the Court in this case recognized its duty to not second guess the Fish and Wildlife Service, it concluded that the Service had not considered and evaluated relevant information.  Because of this, it vacated the Biological Opinion. 

            The groups had also raised questions about the way the Fish and Wildlife Service had considered the Indiana Bat.  Because of its ruling on the fish, it was not necessary that it consider the Fish and Wildlife Service’s evaluation of the Indiana Bat.  The opinion does contain language that indicates that the Court doesn’t think the Service did such a hot job on the Indiana Bat either.

            The Court did address one question that hangs over the entire pipeline:  are we really going to stop a multi-million project that is almost finished over a couple of little fish?  The Court’s answer was yes.  If that is what the law says then that is what the Court is going to do.  Citing a precedent from the United States Supreme Court, it said

We recognize that this decision will further delay the completion of an already mostly finished Pipeline, but the Endangered Species Act’s directive to federal agencies could not be clearer: ‘halt and reverse the trend toward species extinction, whatever the cost.’ Tenn. Valley Auth., 437 U.S. at 184.

This is not a hard no for the construction of the Mountain Valley Pipeline.  It never is.  The Court did not conclude that the Endangered Species Act made it impossible for the pipeline to be constructed.  It did not conclude that the Fish and Wildlife Service could not make a proper evaluation and decide that the pipeline could be constructed without violating the Endangered Species Act.  The Court just decided that, so far, it hadn’t done so.  It sent the Biological Opinion back to the Fish and Wildlife Service to try again.  

The only hard no will come not from a Court or an agency but when the developers decide that, if it is this hard to comply with the law, maybe the Mountain Valley Pipeline was not such a good idea in the first place.