A federal appeals court on Monday revoked the right-of-way that the National Park Service had granted the Atlantic Coast Pipeline to cross underneath the Blue Ridge Parkway in Virginia.
The decision by the three-judge panel will cause some delay for the project, which has already begun construction in North Carolina and West Virginia but not Virginia.
The Sierra Club and the Virginia Wilderness Committee, represented by the Southern Environmental Law Center, argued that the National Park Service, which oversees the parkway, didn’t have the authority to grant the right-of-way for the gas pipeline. They contended that violated the agency’s mandate of conservation.
Chief Judge Roger Gregory, in a footnote to his written opinion, scolded the park service, calling its issuance of a permit “arbitrary and capricious” for invoking laws that weren’t applicable, and for not explaining how approval was consistent with its mission.
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“We find it remarkable that counsel representing the National Park Service, which is charged with ‘providing for the enjoyment of the scenery, natural and historic objects and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations,’ would seem to take a litigation position that regards the premier conservation agency’s role as no more than highway maintenance.”
It remains to be seen how much of a delay the ruling will cause.
Gregory added another footnote to the opinion saying that moving ahead with construction would violate previous authorization by the Federal Regulatory Energy Commission, which is responsible for final approval of the project. Gregory said that authorization requires Duke Energy and its partners to have secured a valid permit from the National Park Service.
“FERC should stop construction now; it would be thumbing its nose at the law if it didn’t,” Southern Environmental Law Center attorney D.J. Gerkin said in an email.
Tammie McGee, a spokeswoman for Duke Energy, said the ruling will not cause any “unnecessary” delay.
McGee said the ruling confirms the National Park Service has the authority to issue the permit, but requires the agency to correct errors and omissions first. In May, the court said the project didn’t have sufficient protections for wildlife, blaming the U.S. Fish and Wildlife Service for issuing a faulty permit.
“We will work with the agencies to resolve the Fourth Circuit Court’s concerns and reinstate our permits as soon as possible,” McGee said in an emailed statement. “We believe the Court’s concerns can be promptly addressed through additional review by the agencies without causing unnecessary delay to the project in the meantime.”
McGee said Monday’s ruling was further evidence of the “unprecedented scrutiny and the high standard that is being applied to the project.”
The pipeline will run over 600 miles transporting natural gas from West Virginia to North Carolina, covering close to 12,000 acres. Construction will require a right-of-way of nearly 125 feet.
The other two judges on the appeals panel were Judge James Wynn Jr., a former state Supreme Court justice in North Carolina, and Judge Stephanie Thatcher.