Despite the assurances of Dominion Resources that the Atlantic Coast Pipeline remains on target, after last week’s rulings by the Fourth U.S. Circuit Court of Appeals in Richmond that vacated a key federal permit, you have to wonder.
At issue was a permit issued by the U.S. Fish and Wildlife Service regarding the protection of endangered and threatened species in the path of the 605-mile-long natural gas pipeline, almost identical to permit the court vacated a year ago.
And therein lies the rub for Dominion and its controversial pipeline.
In August 2018, a Fourth Circuit appellate panel blocked the Fish and Wildlife Service’s finding that the pipeline wouldn’t harm or threaten the viability of four endangered or threatened species in its path, saying the agency hadn’t adhered to its own rules. Just 19 days after that ruling, the agency issued a new permit to Dominion that environmental groups and pipeline foes said still failed to adequately address species concerns.
It was that permit that a three-judge panel led by Chief Judge Roger Gregory threw out, and the speed with which the permit had been granted a year ago played prominently in Gregory’s 50-page opinion. “In fast-tracking its decisions,” Judge Gregory wrote, “the agency appears to have lost sight of its mandate under the [Endangered Species Act]: ‘to protect and conserve endangered and threatened species and their habitats.’”
In other words, a federal agency dedicated to protecting the nation’s environmental heritage put the interests of the natural gas industry ahead of its congressionally mandated mission. An endangered bee population in Bath County, freshwater mussels in three West Virginia rivers, an endangered bat species in Virginia and West Virginia and threatened crustaceans living in underground limestone formations in the Shenandoah Valley — the Fish and Wildlife Service improperly sacrificed the causes of which on the altar of the Atlantic Coast Pipeline, the plaintiffs contended and the court ruled.
The pipeline has been a flashpoint ever since then-Gov. Terry McAuliffe announced the massive project in 2014, just months after beginning his term as governor. Designed to convey fracked natural gas from West Virginia through Virginia and North Carolina, opposition sprang up almost immediately. Residents of Augusta, Nelson and Buckingham counties in Virginia have been at the fore of the opposition ranks, raising issues of unstable ground through which the pipeline would run, crossing the Blue Ridge Parkway and the Appalachian Trail, groundwater contamination and construction of a key compressor station in the middle of historic African American communities.
The original timetable called for the pipeline to be finished by 2017 — that obviously didn’t happen. Between court challenges and environmental problems involved with the construction, the completion date kept being moved later and later. At one point, the ACP was scheduled to be operational by the fall of this year.
As the completion date of the pipeline keeps being pushed further into the future, the project’s cost becomes more of a factor for Dominion and its partners. When originally announced, Dominion estimated the pipeline’s total cost would be in the neighborhood of $5 billion; today, that estimate is more like $7.5 billion, and that’s only a working estimate. Regulators in Virginia have given Dominion permission to recoup much of its costs from its ratepayers, a move that galvanized already angry and determined opponents.
It’s all but certain Dominion, its partners and their lawyers will ask the U.S. Supreme Court to accept its appeal of this latest Fourth Circuit ruling. They’ve already petitioned the high court to review another Fourth Circuit ruling, a December 2018 opinion that rejected a Fish and Wildlife Service permit allowing the pipeline to cross beneath the Appalachian Trail in Augusta and Nelson counties.
Right now, the odds that the pipeline will be built are still in Dominion’s favor. It’s one of the most powerful corporations in the state and has the political backing of both Democratic and Republican officials in Richmond. But with the rising costs, the courtroom setbacks and still-growing grassroots opposition to the project, you have to wonder if, at some point, the project simply becomes politically and financially unviable.
That tipping point may be closer than you think.