Note: The text version of this post was published in the News-Leader and distributed by the USA Today Network on 8/15/19.
Dominion and Duke Energy lost yet another federal permit to build the ill-conceived Atlantic Coast Pipeline (ACP). For the second time, the U.S. Fourth Circuit Court of Appeals vacated Dominion’s permit to take, kill, and destroy habitat for federally listed endangered species.
A bumblebee, a bat, a mussel, and a half-inch, blind crustacean are in the proposed path of the 42-inch, fracked-gas pipeline. All four species are on the brink of extinction—the death of the last individual of the species.
According to the Endangered Species Act (ESA), if a project like the ACP is going to kill or harm a species on the brink of extinction, or destroy its habitat, they must have a permit from the federal agency in charge of protecting the endangered species – the U.S. Fish and Wildlife Service (FWS). The permit must list how many endangered species the project can kill or harm or list how many acres of the species’ habitat it can destroy without jeopardizing the survival of those species.
The Court Threw It Out—Again
July 26, the federal appeals court, for the second time, vacated the permit for the beleaguered Atlantic Coast Pipeline. The court found that the FWS was “arbitrary and capricious” in its decision that the construction of the 605-mile fracked-gas pipeline would “not likely jeopardize the existence” of the four endangered species: the Rusty Patched Bumble Bee, the Madison Cave Isopod, the Clubshell mussel, and the Indiana Bat.
But, wait. Aren’t there also hundreds of people in the path of the pipeline that don’t want Dominion to take their land through eminent domain? Won’t thousands of streams and rivers be damaged by sediment pollution during construction? And what about the environmental injustice in Union Hill where a toxic compressor station for the pipeline is planned in a community of descendants of freed slaves? Isn’t all that enough to stop the pipeline? I am thankful for the law but how does the Endangered Species Act wield so much power?
Some Background on the Law
The Endangered Species Act (ESA) of 1973 was passed unanimously by the Senate and 390 to 12 in the House. It was signed into law by President Nixon.
Representative Leonor Sullivan (D) stated the reason for the law succinctly on July 27, 1973, on the House floor when she introduced the bill. “From the most narrow possible point of view, it is in the best interest of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are the keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask,” she stated.
Aldo Leopold, the father of wildlife conservation in the U.S. said it this way: “The first law of intelligent tinkering is to save all the parts.”
In other words, it is not wise to wipe off the face of the Earth a species that could hold the cure for cancer or any number of human ailments.
We Might Need That Part, Don’t Discard It
Today one-fourth of all pharmaceuticals come from or are derived from, plant and animal material. Examples abound, such as the rare plant in Ecuador, Diplostephium rhododendroides, which contains compounds active against Hepatitis C, and diabetes. The drug Taxol is a compound found in the bark of the Pacific Yew. This miracle compound is the standard treatment for advanced stages of ovarian cancer. The blood from horseshoe crabs, used without the loss of the crab, is widely used in the pharmaceutical industry to test drugs.
I have three friends that have glioblastoma, the deadliest of brain tumors. Maybe the cure for that tumor lies in the genetic material of the isopod in the path of the pipeline. Is it worth wiping out a species so a corporation can make more money from their captive ratepayers?
Fast Tracking the Permit
The permit for allowing the elimination or “taking” of an endangered species or its habitat by Dominion was first vacated on August 6, 2018. In a mere nineteen days, FWS reissued the permits, which the Fourth Circuit tossed out with gusto.
“In fast-tracking its decisions, the agency appears to have lost sight of its mandate under the ESA: ‘to protect and conserve endangered and threatened species and their habitats,’” wrote Chief Judge Gregory (appointed by George H.W. Bush) in his 50-page decision.
The facts didn’t add up. Or were they facts? A unanimous, panel of three federal judges (Gregory, Winn, and Thacker) didn’t think so. The decision was that the FWS was arbitrary and capricious in issuing the permit.
“There is no evidence that this pipeline is needed for anything other than Dominion and Duke Energy profits. For the sake of these rare species and its customers’ wallets, it’s time for these utilities to walk away from this badly planned boondoggle,” stated Patrick Hunter in a press release from the Southern Environmental Law Center, the non-profit legal firm that represents Defenders of Wildlife, the Sierra Club, and the Virginia Wilderness Committee.
If a bee, a bat, a mussel or a crustacean can stop Dominion’s pipeline, I’m all for it. I wish the people in its path had as much standing in court as the critters.
* This photo is rather famous. Steve took the photo on Bill and Lynn Limpert’s property in Bath County where the planned ACP will destroy more than 300 trees older than this country. He did not know the bee was in the photo until he examined it later during a review. FWS confirmed he had photographed the endangered species in the path of the pipeline which spurred more investigation.
An excellent set of commentaries; we enjoyed your views and feel fortunate to have you as one of our local sages.
Fred, thank you. You are too kind!
I still have trouble with this wording:
“The permit for allowing the elimination or “taking” of an endangered species or its habitat by Dominion was first vacated on August 6, 2018. ”
Can the term vacated be explained further? It’s not clear. The newspapers said the same thing. I think of vacating as leaving a property or structure. How does it apply?
Gotta point out in response to your final comment, that it isn’t the individual bees, mussels or bats that have standing but the species. Humans are in no danger of extinction–or at least, not imminent danger.
I love your quote by Aldo Leopold. . . .not many people know about him. And you help present the case why we should care about things like the Madison cave isopod. I would go further and say that all beings have a right to exist even if they ARE NOT of any direct benefit to humans. Or, put another way, we don’t get to decide who gets to live and who doesn’t. If you believe in a God, then that’s His/Her department. If you don’t, then may ALL beings be free from suffering
Spot on Diana, thanks for stopping in.
Another fine piece, Bobby. The Sixth Extinction is the greatest ecological threat in millions of years, compounded every day by anthropocentric climate change, habitat loss and the poaching of endangered species.
Ms. Elfner, legally “vacating” a statute or a part thereof means rendering it legally null and void. Thus Dominion’s ability to legally transgress the ESA has been annulled by a federal court. ?
Thank you, Bill. Great comments.
Thanks again, Bobby for keeping the pipeline pot stirred. Everything Dominion and Duke do is greed based with human (non-stock holder)concerns a distant second and environmental concerns an annoying nuisance to be sued away. I fear the recent move by the Trump administration to gut the Endangered Species Act will aid corporate lawyers in getting the pipeline back on the rip, rape and build track. Can’t wait to hear their spin on yesterday’s news that we just endured the hottest July ever; who will corporate America or DeeCee blame, surely it’s not their fault. And, certainly no Dominion/Duke execs planning a pipeline or coal ash dump in their neighborhoods. Thanks for continuing to shine the light on the corporate darkness.
Randy, thanks for your comments. You have a lot in there! Corporate darkness indeed!
Thanks Bobby, you’ve done it again, got this old lady “all het up”! And the comments from your readers are almost as interesting as your post. Thanks especially for the reminder of Leopold’s remark, you probably have it in memory. As he is an early hero but my brain is all but vacant these days, when it didn’t ring quite true, I looked it up.
I believe it is “The first rule of intelligent tinkering is save all the pieces.” — Aldo Leopold. (close, but no cigar!) Anne
Hah, very good, Anne. I guess the version I had was slightly different. Anyhow, glad to get you “het up!”
We should remind ourselves that the large diameter pipelines are being built to create a worldwide grid to ship natural gas nearly anywhere on the planet. If you search, you will find that the pipeline being built by 7 multinational pipeline companies, including TransCanada and the Russian GASPROM, has almost finished crossing the Bering Sea. That is the final link between the Western Hemisphere and Asia, Europe and Africa. Being able to transport natural gas anywhere in the world will place most fossil fuel distribution in the hands of seven companies and they will be able to control who get the gas and at what price. Meanwhile, of course, the Sixth Extinction will march on to its inevitable conclusion. The ACP and Mountain Valley P. have always been a lie to the public. Fortunately, at the moment we have a legal advantage, but money is usually the ultimate advantage when “eternal vigilance” fails.
Excellent comment and insight. Thanks for posting this.
This is a very well crafted presentation, Bobby, and highly informative.
I like your logic here – – people have standing, too. We appear to have reverted to a 19th century
mentality that gives the huge corporations preference over people. This is an atavism I hope we will address in 2020.
Well said, Michael. Thank for commenting.
I am trying to get caught up on some reading this morning, your blog is where I started…it is an excellent piece! Outrageous what is happening to the endangered spices act…and things like the Amazon burning…it all hurts my heart. However to see the slow steady progress of those fighting for our natural world, the folks who have given so much to fight the Atlantic Coast Pipeline is really heartening.
I love the Leopold quote. Another favorite of mine is: “I will argue that every scrap of biological diversity is priceless, to be learned and cherished, and never to be surrendered without a struggle.” ― E.O. Wilson
Thank you for all you are doing,
Love the quote! Thanks for your comment and leadership at the VOWA.
I find it amazing that endangered species are halting the continuation and building of the pipeline since species are usually the ones forgotten. That is why it is astounding that human consideration is not the main focus. Thank goodness for the Endangered Species Act, if it wasn’t for this act, the permit granted to Dominion to build this pipeline might not have been stopped in court. The Atlantic Coast Pipeline also isn’t needed for any other reason but to give profit to Dominion and Duke. None of the natural gas will be available to the people that this pipeline is affecting. Hopefully, more can be done to stop this pipeline.