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Second Controversial Fracked Gas Pipeline Runs Into Legal Trouble

A Virginia farm along the proposed path of the controversial Atlantic Coast Pipeline. Norm Shafer / Washington Post / Getty Images

August is off to a good start for environmental groups and communities in Virginia and West Virginia who oppose two pipelines that would carry fracked natural gas through the region.


Three days after the U.S. Federal Energy Regulatory Commission (FERC) ordered work to pause on the Mountain Valley Pipeline, its sister pipeline also ran into legal trouble.

A federal appeals court on Monday vacated two permits required by the Atlantic Coast Pipeline to complete its 600 mile project beginning in West Virginia and traveling through Virginia to North Carolina, The Associated Press reported.

"There is no right way to build these dirty, dangerous fossil fuel projects, and people in Virginia and across the country will continue to come together to fight them until they are permanently halted," Sierra Club Executive Director Michael Brune told The Associated Press.

The Sierra Club was one of the groups, along with Defenders of Wildlife and the Virginia Wilderness Committee, that brought the case that led to the ruling by the 4th U.S. Circuit Court of Appeals. The case was argued by the Southern Environmental Law Center.

The court ruled that the a National Park Service (NPS) permit allowing the pipeline to pass under the Blue Ridge Parkway was invalid because it did not explain how the pipeline's construction would not contradict the scenic purpose of the parkway, which connects Virginia's Shenandoah National Park to North Carolina's Great Smoky Mountains National Park.

Construction would require cutting enough trees that a gap in the forest would be visible from at least one parkway observation point.

Chief Judge Roger Gregory called the permit "arbitrary and capricious" in his ruling.

"Arbitrary and capricious" were also the words used by the court to justify vacating a second permit granted by the U.S. Fish and Wildlife Service because it didn't specify any limits to the pipeline's impact on five threatened or endangered species.

The revoking of the second permit built on a ruling in May, in which the court initially found that the "incidental take statement," which is the statement that sets limits on the impact of projects on vulnerable species, was not sufficiently clear.

Following that initial ruling, the pipeline's builders said they would suspend construction along 21 miles in West Virginia and 79 miles in Virginia until a new "incidental take statement" was completed.

In a footnote to Monday's ruling, the court said that revoking the permits meant that FERC's approval of the pipeline was invalid until new permits were issued, since that approval was contingent on satisfactory permits.

"Absent such authorizations, ACP, should it continue to proceed with construction, would violate FERC'S certificate of public convenience and necessity," the footnote said, according to The Associated Press.

Environmental Law Center senior attorney D.J. Gerken thought the ruling would be a huge stumbling block for the project.

"Today's decision means Atlantic has to go back to the drawing board," he told The Associated Press.

Dominion Energy, the company leading development on the project, disagreed.

"We believe the Court's concerns can be promptly addressed through additional review by the agencies without causing unnecessary delay to the project," the company said in a written statement reported by The Associated Press.

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