Appalachian Voices v. U.S. Department of Interior

The Fourth Circuit Court of Appeals denied intervenor-defendant Mountain Valley Pipeline, LLC’s petition for rehearing en banc of the court’s February 3, 2022 decision vacating a biological opinion and incidental take statement for the Mountain Valley Pipeline due to the U.S. Fish and Wildlife Service’s failure to adequately evaluate climate change impacts on two endangered species of fish. The intervenor-defendant argued that the panel misapplied the arbitrary-and-capricious standard of review and improperly substituted its judgment for the agency’s in evaluating potential effects of climate change.

The Fourth Circuit Court of Appeals vacated the U.S. Fish and Wildlife Service’s (FWS’s) 2020 biological opinion and incidental take statement for the Mountain Valley Pipeline. The court found that the FWS failed to adequately evaluate the impacts of climate change on two endangered fish, the Roanoke logperch and candy darter. Although the court stated that it was “not clear” whether the FWS should consider climate change “as part of the environmental-baseline analysis, the cumulative-effects analysis, or both,” the court concluded that in this case “it makes no difference” because the FWS did not properly evaluate climate change at all. The court noted that there was only one sentence discussing the impacts of climate change on the logperch in the biological opinion and no mention of climate change in connection with the darter. The court then rejected the FWS’s arguments that the logperch and darter models used in the analysis implicitly accounted for climate change as “impermissible post hoc rationalizations.” The Fourth Circuit further found that even had the FWS articulated the modeling rationale, the analysis would be arbitrary and capricious. The Fourth Circuit also found more generally that the FWS failed to adequately evaluate the environmental baseline and cumulative effects on the logperch and darter but rejected other arguments made by the petitioners.

Briefing was completed in environmental groups’ lawsuit seeking review, for a second time, of the U.S. Fish and Wildlife Service’s approvals for the Mountain Valley Pipeline. The petitioners’ arguments include contentions that the FWS failed to meaningfully analyze climate impacts on the Roanoke logperch and the candy darter, and also failed to specify impact for the Indiana bat, whose habitat is threatened by climate change. The petitioners argued that currently unoccupied bat habitat cleared for the pipeline would no longer be suitable for future use by the bat. The respondents argued that they properly accounted for potential impacts on the logperch and darter and that climate change was not anticipated to limit the availability of Indiana bat habitat in the bat’s Appalachian Mountain Recovery Unit.