The Trump Administration Provides Another Lesson in How to Lose An Environmental Case

Last week, the 4th Circuit Court of Appeals vacated the Fish and Wildlife Service’s Biological Opinion and Incidental Take Statement for the Atlantic Coast Pipeline.  It’s the second time that the Court has rejected the FWS approval of the project.  I have previously suggested that the Trump administration cares more about providing material for the President’s Twitter feed than advancing its deregulatory or energy dominance agendas.  Last week’s decision provides some compelling evidence in that direction.

Much of the opinion focuses on FWS’s assessment of the impact of the project on the rusty patched bumble bee, which sounds as though it is at extinction’s door.  The Court rejected FWS’s BiOp as arbitrary, “because it [was] not based on the best available information and in fact ignore[d] evidence that the agency itself has developed.”  Moreover, the Court noted, while FWS has guidance regarding how to survey RPBB nests, it conducted no surveys to do so.

In fact, the agency made a point of avoiding surveys in order to “fast-track” pipeline authorization. (“Our internal direction is that we can’t require surveys and will not make further requests for surveys that interfere with applicant’s project schedule since these are priority fast-track projects, and we will not state that we have insufficient information to initiate consultation and will not delay initiation of consultation based on lack of baseline/species survey data.”).

Can you imagine how the plaintiffs’ attorneys’ eyes must have lit up when they found this statement?  FWS admitted that they would not perform surveys on fast-track projects – and would deny that they have insufficient information!

My only question is why the Court of Appeals felt the need to write a 50-page opinion.  I think that this one paragraph was probably enough.

So much for any pretense that this administration cares about the rule of law.

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