Legal Update on the Atlantic Coast Pipeline

Legal Update on the Atlantic Coast Pipeline
By Sierra Club Senior Attorney Nathan Matthews

Faced with a string of legal losses, the polluting corporations behind the fracked gas Atlantic Coast Pipeline (ACP) informed the Federal Energy Regulatory Commission (FERC) on December 7 that they were halting all construction on its 600-mile route. This may very well represent a tipping point in the fight against this pipeline and raises real questions about whether it will ever be built at all.

All construction is currently halted on this pipeline, a decision that comes after courts have stayed at least three key permits. With so many different legal pieces moving on fracked gas pipelines, we thought it would be helpful to recap where things stand on the ACP.

The United States Court of Appeals for the Fourth Circuit has blocked three agency approvals:

1. On December 13 the court vacated the permits from the United States Forest Service, effectively prohibiting activity along the 21 miles of pipeline route within the Monongahela and George Washington National Forests. The court held that the Forest Service had: failed to properly consider alternative pipeline routes outside the national forests; understated risks of landslides, sediment, and erosion; violated its own planning rules; and improperly allowed the gas pipeline to cross the Appalachian National Scenic Trail. This ruling will require rerouting the pipeline and significant additional analysis, including renewed opportunity for public comment. In a similar case regarding the Mountain Valley Pipeline (MVP), a 300-mile fracked gas pipeline that would run to the west of the ACP, the court vacated the Forest Service’s approval on July 27, 2018, and the Forest Service has yet to provide public notice of a new draft analysis.
2. On November 7, the court stayed the Army Corps of Engineers' 404 permit (which is named for the section of the Clean Water Act that created it and was issued under Nationwide Permit 12), prohibiting ACP from doing any construction in rivers or streams. This case will be briefed into January, and argued sometime next year.
3. On December 7, the court stayed the Fish and Wildlife Service's Biological Opinion and Incidental Take Statement. This stay effectively prohibits all activity in habitat for species protected under the Endangered Species Act: if ACP were to continue construction despite the stay, and impact any protected species without a valid incidental take statement, ACP would potentially be on the hook for both civil and criminal penalties. This case is currently being briefed and is on calendar for argument in March.

Sierra Club is a petitioner in each of these suits, represented by our own in house attorneys, Southern Environmental Law Center, and/or Appalachian Mountain Advocates.