2020 Environmental Real Estate Issues

The U.S. Court of Appeals for the Fourth Circuit vacated the Biological Opinion of the U.S. Fish and Wildlife Service (FWS) for the Mountain Valley Pipeline Project, finding FWS failed to adequately consider the project’s impacts on two endangered species of fish.

The Federal Energy Regulatory Commission (FERC) authorized the project, a pipeline proposed for West Virginia and Virginia, in 2017. After a successful challenge on other issues, FERC reinitiated consultation with FWS under the Endangered Species Act (ESA) in 2019, due to potential impacts to several endangered species. FWS issued a Biological Opinion in 2020, which the 4th Circuit has now vacated.

Three Step ESA Process
To meet ESA requirements, FWS must 1) review all available relevant information, 2) evaluate the current status of the endangered species, the relevant “environmental baseline,” the cumulative effects of reasonably anticipated non-Federal action that may affect the species, and the effect of the proposed federal agency action, and 3) add the effects of the proposed action with the cumulative effects and determine if the action is likely to jeopardize the species.

FWS’s Failures
The 4th Circuit determined FWS failed to adequately evaluate the environmental baseline and the cumulative effects for the Roanoke logperch and the candy darter, both endangered species.

Among the deficiencies, the Court specifically stated FWS failed to fully consider the impact of climate change on the species. While FWS could have done so as part of the environmental baseline, as part of the cumulative analysis, or both, FWS’s consideration of climate change impacts was inadequate.

Further Delay
The 4th Circuit recognized its decision “will further delay the completion of an already mostly finished Pipeline,” but FWS failed to follow the ESA’s clear directive.

The case is Appalachian Voices v. U.S. Dept. of Interior; to see the 4th Circuit’s Opinion https://www.ca4.uscourts.gov/opinions/202159.P.pdf