ROANOKE — A federal judge has declined to lift his temporary ban on a permitting process for the crossing of streams and wetlands by oil and natural gas pipelines, including the Atlantic Coast Pipeline.
In an order last week, Montana U.S. District Court Judge Brian Morris denied the Department of Justice’s request for a stay pending an appeal of the case.
Morris earlier struck down a streamlined method used by the U.S. Army Corps of Engineers to approve waterbody crossings, ruling the agency did not properly evaluate the potential harm to endangered species by the Keystone XL pipeline, which will transport crude oil from Canada to Nebraska.
The sweeping ruling prevented other planned pipelines from obtaining a similar permit from the Army Corps until “completion of the consultation process and compliance with all environmental statutes and regulations” — a process expected to take months.
Government lawyers had asked Morris to limit his ruling to the Keystone pipeline.
But in a 38-page opinion, Morris wrote pipeline developers “possess no inherent right to maximize revenues by using a cheaper, quicker permitting process, particularly when their preferred process does not comply with the ESA [Endangered Species Act.]”
Environmentalists have argued for years the Army Corps’ process, called a Nationwide Permit 12, takes a “blanket approach” that does not adequately assess a pipeline’s crossing of each stream or wetland in its path. The Atlantic Coast Pipeline is slated to cross more than 1,500 waterbodies.
“Constructing pipelines through rivers, streams and wetlands without analyzing the impacts on imperiled species is unconscionable, and we will continue to fight to protect vulnerable species, our waters and the climate from such reckless development,” Jared Margolis, a senior attorney with the Center for Biological Diversity, said in a statement.
Atlantic Coast Pipeline spokeswoman Ann Navallo said in an email this week officials for the ACP — which will run from West Virginia to North Carolina, crossing Virginia and 27 miles in Nelson County — “will continue to follow further developments on the case to assess any impact” on the project.
Navallo said the $8 billion, 600-mile, natural gas pipeline is expected to be in service by 2022 and begin construction later this year.
In the project’s initial stages, officials projected a completion date in late 2018, but multiple court challenges have changed that timeline over the past several years, and construction is currently stalled. Courts have rejected permits and approvals ACP needs for construction from multiple state and local agencies.
“We have been working diligently with the ... agencies on resolving the issues identified with the permits,” Navallo said. “We remain confident we’ll get them resolved in a timely manner.”
The project has, however, found some momentum of late, receiving a favorable ruling from a federal judge in a case that challenged Nelson County’s permitting process for crossing floodplains. The U.S. Supreme Court, after hearing arguments in February, also seems poised to rule in favor of ACP regarding a federal permit needed to cross the Appalachian Trail.
As for the stream-crossing permit, the U.S. Department of Justice has appealed Morris’ ruling to the 9th U.S. Circuit Court of Appeals and has asked for an expedited briefing schedule, according to Navallo. But unless the 9th Circuit grants the DOJ’s motion for an emergency stay, the appeals process could take at least a year, according to Height Capital Markets, an investment banking firm that has closely followed the development of the Mountain Valley Pipeline, another project slated to cross Virginia that has been affected by last week’s ruling.
Morris did change part of his ruling last week, allowing the Nationwide Permit 12 to be used for non-pipeline projects, such as electrical lines and other utility work. He also allowed companies to perform maintenance and repairs on pipelines.
Critics had argued thousands of vital infrastructure projects across the United States would be jeopardized.
The Gain Coalition, or Grow America’s Infrastructure Now, said in a statement issued last week even when limited to new pipelines, the ruling went too far.
“The judge sided with plants and animals over humanity in a decision that will directly impact hundreds, if not thousands, of jobs and likely raise the cost of energy,” the statement read.
News & Advance reporter Emily Brown contributed.