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Court vacates key federal permit for Atlantic Coast Pipeline

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Signs mark the route of the Atlantic Coast Pipeline in Deerfield, Va.

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By SARAH RANKIN
Associated Press

Wednesday, May 16, 2018

RICHMOND, Va. — A federal appellate court has vacated a key permit granted to the Atlantic Coast Pipeline, an order Tuesday that means all work on the multistate project must stop, according to attorneys who argued the case for environmental groups.

The 4th U.S. Circuit Court of Appeals says an "incidental take" statement from the U.S. Fish and Wildlife Service, meant to protect threatened or endangered species, provided no specific limits for the allowable impact.

The court's brief order says "the limits set by the agency are so indeterminate that they undermine the Incidental Take Statement's enforcement and monitoring function under the Endangered Species Act."

The Southern Environmental Law Center, which argued the case on behalf of Defenders of Wildlife, Virginia Wilderness Committee and Sierra Club, said the order means all construction and any activity associated with the pipeline must halt immediately.

The court order did not directly address construction or other work on the approximately $6.5 billion natural gas pipeline.

But SELC attorney D.J. Gerken said in an interview that construction must cease because other federal permits that allow work to proceed were contingent on the incidental take statement.

A spokeswoman for the project that will start in West Virginia, cross Virginia and run into North Carolina didn't immediately respond to requests for comment.

A spokeswoman for the Federal Energy Regulatory Commission, which oversees interstate natural gas pipelines, couldn't immediately be reached. The 4th Circuit wrote that its reasoning would be explained more thoroughly in a forthcoming opinion.

"The Sierra Club applauds the court for recognizing that the Fish and Wildlife Service, like other agencies involved in permitting the Atlantic Coast Pipeline, failed to impose meaningful limits or adequately scrutinize the project," Sierra Club Attorney Nathan Matthews said in a statement. "This fracked gas project has been proven to be perilous to our health, our communities, and wildlife, and now, thanks to tonight's ruling, must be stopped."

Developers of the pipeline have said it will boost the economy, create jobs and help utilities transition away from coal. They have defended the review process by a multitude of state and federal agencies as rigorous and protective of the environment.

Earlier Tuesday, a coalition of public interest groups filed a complaint with the U.S. Environmental Protection Agency's civil rights division, arguing that North Carolina failed to protect the civil rights of residents of color when it approved permits.

The complaint says the state obscured the route's disproportionate impact on black people and Native Americans by comparing demographics within a mile of the pipeline to the rest of each county, rather than the rest of the state.

"The State agencies appear to have relied on FERC's flawed analysis of environmental justice without any separate analysis," the groups said in the letter. "Just because there is a low population concentration does not mean people of low income or people of color would not be disproportionately impacted."

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