Bacon's Rebellion

Democracy Thrives in Sunlight

Pipeline Runs Afoul of Endangered Species

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by

James A. Bacon
in ,

Atlantic Coast Pipeline foes won a significant legal victory yesterday when the Richmond-based U.S. Circuit Court of Appeals invalidated a Fish and Wildlife Service Review of pipeline construction. Limits set by the federal agency for the protection of endangered species were “so indeterminate” that they rendered enforcement of the Endangered Species Act meaningless.

“This puts a stop to any work that could threaten rare and endangered species and that’s much of the pipeline route,” the Richmond Times-Dispatch quoted D.J. Gerken, the Southern Environmental Law Center attorney who argued the case, as saying.

Dominion officials said they would push ahead with the project. “We will fully comply as required while we continue to construct the project,” said company spokesperson Jen Kostyniuk. “Although we disagree with the outcome of the court’s decisions, an are evaluating our options, we are committed to working with the agency to address the concerns raised by the court’s order.”

According to Gerken, the Fish and Wildlife Service’s review allowed for a “small percent” of endangered species to be killed during construction, but did not define what constituted a small percent. “A small percent would never get triggered because nobody knows what it is,” he said.

The project will cross the habitats of eight endangered or threatened species, including the Roanoke logperch, the Indiana and long-eared bats, the Madison Cave isopod, the rusty patched bumblebee, and the clubshell mussel.

Bacon’s bottom line: The ruling gives a moral victory to pipeline foes but I doubt it will be a significant blow to the project. Dominion Energy, the ACP’s managing partner, will argue with pipeline foes over how to define what constitutes a “small percent” of loss to the endangered species and what kind of protections are needed. The Fish and Wildlife Service will develop more specific criteria. Unless Dominion appeals the case, it will buckle under and spend whatever money it takes to comply. The company is so deeply committed to the project that it cannot afford to back out.

Update: Dominion issued a statement this morning: “”We remain confident in the project approvals and the Atlantic Coast Pipeline will continue to move forward with construction as scheduled. This decision only impacts activities directly covered by the Incidental Take Statement in certain defined areas along the route. We will fully comply as required while we continue to construct the project. Although we disagree with the outcome of the court’s decision, and are evaluating our options, we are committed to working with the agency to address the concerns raised by the court’s order.”

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8 responses to “Pipeline Runs Afoul of Endangered Species”

  1. LarrytheG Avatar
    LarrytheG

    There is significant doubt that the pipeline is really needed and Dominions plans to burn gas as much as possible rather than use solar as much as possible and gas when it’s not – is not in anyone’s interests except Dominion.

    You don’t need a long pipeline to deliver gas to burn for electricity and you don’t need to burn gas 24/7 for baseload if you are planning to use solar as much as you can – and only use gas for power production when solar is not available.

    They might get through the environmental wickets and they may run over the SCC -but in the end… others are going to build solar – and we are going to use solar – and only gas when we don’t have solar… Dominion can’t stop that from happening.

  2. Reed Fawell 3rd Avatar
    Reed Fawell 3rd

    “the Fish and Wildlife Service’s review allowed for a “small percent” of endangered species to be killed during construction, but did not define what constituted a small percent. “A small percent would never get triggered because nobody knows what it is,” he said. The (pipeline) project will cross the habitats of eight endangered or threatened species, including the Roanoke logperch, the Indiana and long-eared bats, the Madison Cave isopod, the rusty patched bumblebee, and the clubshell mussel.”

    This is the sort of idiocy that’s ruining the country, and its ability to function.

  3. Steve Haner Avatar
    Steve Haner

    I will count the logperch, and Reed, you can count the long-eared bats. Let’s send Larry to count the bumblebees. We’ll need a baseline so we can count the corpses after the pipeline crew moves on….Yep, you cannot make up this stuff.

  4. LarrytheG Avatar
    LarrytheG

    Not a fan of the endangered species act as currently practiced but would also point out that the Fish and Wildlife people are well experienced in such analyses and well aware of vague and subjective phrases and the downstream trouble they can cause.

  5. LarrytheG Avatar
    LarrytheG

    Endangered species won’t stop a project. It does not apply to private property and even public property – the requirement is that you accurately document it – then the Agency in charge can still approve it.

    It’s when you don’t accurately document it – that the other side can slow you down. It’s only a delay until the paperwork and words are “correct”..

    Enviros go through the docs looking for these lapses … in hopes that they can slow it down and something else will derail it.

    I’ve never had a problem with a pipeline project that acquired right-of-way – like the Rockies Express did – 99% voluntary willing-buyer/willing-seller.

    Don’t have a problem with roads, rail, powerlines, cell towers, wind turbines nor solar panels either.

    but do have a problem with mercury and carbon pollution from coal and storm water runoff in urbanized areas and piles of coal ash – and in general dumping waste that degrades the air and water we all need.

  6. djrippert Avatar
    djrippert

    As this blog’s only defender of the Chesapeake Bay menhaden I’ll take up the cause of the Roanoke Logperch. How dare Dominion think it can disrupt the natural habitat of this beautiful 4.5 in fish! Did the Dominion executives lean nothing from the Snail Darter incident?

    Percina Rex is vulnerable but just barely. I see the ICUN Red List as the most authoritative and reasonable measure of species vulnerability. By that measure the Roanoke Logperch is one notch above endangered. The key question is whether the pipeline would push it from vulnerable to endangered. I doubt it.

    I oppose the building of the pipeline but I also think using excuses like the Roanoke Logperch to justify delay is unreasonable.

  7. Steve Haner Avatar
    Steve Haner

    I assume they will amend the application and promise not to reduce the threatened populations more than 2 percent, or 5 percent, or whatever. But how will you know? By their very nature these are uncounted. If some activist shows up at Fish and Wildlife with a bucket of dead logperch, how will anybody know what really happened? The problem is not the permit, it is the statute. But this is hardly the first time it has become an intentional impediment to development.

    What’s really interesting about all this is, what? This was the Fourth Circuit! I’d heard it had changed seriously under Obama and there it is….

    1. djrippert Avatar
      djrippert

      If I were Dominion I would challenge the assertion that the logperch is actually endangered. If that didn’t work I’d note that the logperch is found as far south as North Carolina and take your tact of estimating the extent of the damage.

      All of this strikes me as odd. Bluefin Tuna really are endangered. But our government doesn’t seem to have any problem with commercial fishing for bluefin tuna. Logperch are threatened (but not really endangered) and suddenly that same government wants to stop a pipeline project over the pretty little fishy (and it is a good looking fish, I wonder how much trouble I’d get into if a put a couple in my aquarium?)

      Like you say … an intentional impediment to development (and I am as big a conservationist as there is among the regular commentators on this blog).

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