The headlines can get confusing quickly: Court A stays Permit B; Party C appeals Ruling D; Agency X reissues Permit Y. In this feature, WMRA’s Andrew Jenner brings us up to speed on the complicated landscape of environmental challenges to the Atlantic Coast Pipeline.
If you lived anywhere in Virginia a few decades ago, chances are good you’ve seen a rusty patched bumblebee go buzzing by. Good luck finding one today, though. Once abundant in the Eastern U.S., the bee began disappearing in the ’90s. Scientists don’t really know why. What they do know is that it’s almost extinct. In 2017, the rusty patched bumblebee went on the endangered species list.
There’s still one spot east of the Appalachians, however, where a few of the insects are consistently found: Highland and Bath counties – right along the proposed route of the Atlantic Coast Pipeline.
PATRICK HUNTER: The Endangered Species Act says that a federal agency cannot jeopardize the continued existence of an endangered or threatened species.
Patrick Hunter is an attorney with the Southern Environmental Law Center and part of the legal team arguing a pending case against a U.S. Fish and Wildlife Service permit granted to the pipeline developers. One part of their argument is that the pipeline will have “severe impacts on this globally significant population.”
HUNTER: If that’s the case, then FERC cannot issue a permit for this project as it is designed, because FERC cannot issue a permit that is going to jeopardize a species.
FERC is the Federal Energy Regulatory Commission, which has ultimate authority over the pipeline. Oral arguments in the case involving the rusty patched bumblebee will be heard on May 9th before the Fourth Circuit Court of Appeals in Richmond. It’s just one of the many federal suits brought by environmental groups challenging Atlantic Coast Pipeline’s proposed route – and sometimes its entire premise. Lewis Freeman is the executive director of the Allegheny-Blue Ridge Alliance, a coalition of more than 50 groups that oppose the pipeline.
LEWIS FREEMAN: We believe it is an unneeded project and one that, even if needed, should not be built where the companies who are sponsoring it wish to build it, through the mountains of Virginia and West Virginia.
KARL NEDDENIEN: Every foot of this project has undergone rigorous examination.
The pipeline’s developers and its opponents have completely opposite views on its environmental impact. Karl Neddenien is a spokesman for Dominion Energy, the lead partner of the Atlantic Coast Pipeline.
NEDDENIEN: This has been the most thoroughly reviewed infrastructure project in the history of our region. There’s no other project that’s been developed with greater attention to protecting the environment.
FREEMAN: Dominion says, ‘We’re going to build the most environmentally responsible pipeline possible.’ We don’t’ believe that they can, and we believe that the route that they have chosen is disastrous in that respect.
And so, the two sides have wound up in court, a lot. If you’re keeping score, there have been nine environmental suits against the pipeline so far in federal courts. All of them challenge permits from state and federal regulators. Three cases are active, including the endangered species one against the U.S. Fish and Wildlife Service. Then there’s a challenge of a state-issued permit to build a gas compressor station in Buckingham County, and another case, now in briefing, to invalidate the FERC certificate authorizing all 600 miles of the pipeline through three states.
In December, courts threw out a different permit from the US Forest Service, though that case may not be over.
NEDDENIEN: We are appealing that decision to the United States Supreme Court.
That’ll happen sometime in May, Neddenien says. Finally, environmental groups have gotten courts to invalidate two National Park Service permits, a previous Fish and Wildlife Service permit, and one from the Army Corps of Engineers. They’ve also lost once, when a federal court upheld yet another pipeline permit issued by Virginia’s State Water Control Board. Without any single one of these permits, construction can’t move forward. And at current count, the pipeline lacks key permits from at least four federal agencies. Here’s Hunter again.
HUNTER: As of right now, they do not have a viable route.
Last year, before some of these rulings, about 35 miles of the pipeline were completed. Since December, however, work has been on hold.
NEDDENIEN: It’s unfortunate that these delays are avoidable and bring no net protection to the environment beyond what we’ve already provided. They’re just raising the cost of the project and delaying the supply of much needed energy to the customers
When first proposed five years ago, the Atlantic Coast Pipeline was supposed to cost $4.5 to $5 billion and be finished last year. Now, Dominion says it will cost up to $7.5 billion and be in service by early 2021. Though encouraged by the mostly favorable court rulings so far, Freeman isn’t ready to declare victory.
FREEMAN: I’ve been involved in public policy work since I was in my early 20s. So I know the process well, and I make the analogy often that it’s like a baseball game. A team can maybe score four or five runs in the first or the second inning, but the game isn’t over until it’s over. That’s how I feel about this project.
For Dominion, which is also now lobbying Congress for legislative solutions to the pipeline’s legal problems, it’s all simply a matter of time.
NEDDENIEN: We have a great deal of confidence that we’ll complete the Atlantic Coast Pipeline. We have the resources, we have determination, and we have the need. We’ll get it built.
Pipeline opponents aren’t so sure. Here, at least, is a pretty safe bet: these folks are going to keep seeing a lot of each other in court.
For WRMA News, I’m Andrew Jenner.