By Elizabeth Ouzts
Citizen groups filed another lawsuit against the Atlantic Coast Pipeline Thursday, this time taking direct aim at the federal certificate that undergirds all other permits for the complex interstate gas project.
Pipeline foes have long contended the project isn’t needed to meet demand in Virginia and North Carolina, and that it will cause unmitigated harm to the region’s forests, endangered animals, and waterways.
They’ve filed numerous suits focused on the pipeline’s environmental impacts, winning temporary victories last week that have stalled construction. Thursday’s court challenge with the 4th U.S. Circuit Court of Appeals is the first to focus on whether the gas project is necessary, and success in this case would more likely be permanent.
“This is really the central permit for the entire project,” said Greg Buppert, a senior attorney with the Southern Environmental Law Center, which with Appalachian Mountain Advocates filed the suit on behalf of 13 conservation groups. “This the permit where the need for ratepayers to finance the project is squarely at issue.”
Defining success against pipelines
The 600-mile pipeline from West Virginia to North Carolina is a massive undertaking by any measure. It will bore under or through the Blue Ridge Parkway, two national forests, and hundreds of rivers and streams, including habitat for rare and endangered animals. Its 100-foot wide construction berth will require felling large swaths of forests, crossing the land of thousands of individual property owners. In many cases, the census tracts in the pipeline’s path contain more American Indians and people of color than the surrounding county as a whole.
The agency with ultimate authority over the immense project is the Federal Energy Regulatory Commission, or FERC. The five-member panel determines whether the pipeline is necessary — and if it is, how to balance it against property rights, civil rights, and the need to protect the environment.
In three decades, FERC has rarely concluded that pipelines’ costs outweigh their benefits, rejecting only two applications out of hundreds received. It has often minimized pipelines’ impacts by granting approvals with caveats such as requirements that developers secure valid permits from environmental regulators.
FERC’s certificate for the Atlantic Coast Pipeline is no exception. Issued last October, it came with 73 conditions, including authorizations from a web of state and federal agencies.
Citizen groups are challenging four of these authorizations in court, and they’ve have already notched key wins. On August 6, the 4th Circuit invalidated two permits; four days later, FERC ordered all construction on the pipeline stopped.
“The only lawful thing for FERC to do is to shut down all construction while these permits aren’t in place,” said Buppert. “That’s what FERC’s certificate says.”
But legal experts disagree about the ultimate impact suits like these can have. Attorneys for pipeline opponents believe an invalid permit from any one agency could sink the entire endeavor. Others say a more likely outcome is that pipeline developers will quickly work to correct permit problems or, if necessary, reroute parts of the project.
“If success means they shut down a pipeline,” said Ellen Gilmer, a legal reporter with E&E News, on a recent appearance on West Virginia Public Radio, “I don’t think the rulings that we have seen so far from federal courts suggest…that this is likely to happen extremely soon.”