ELR Citation: 48 ELR 20140
No(s). 18-1082 (4th Cir. Aug 6, 2018)

The Fourth Circuit vacated both an incidental take statement issued by FWS and a right-of-way permit issued by the National Park Service (NPS) for construction of a natural gas pipeline that intersects the Blue Ridge Parkway. Environmental groups argued that the take limits set by FWS in its Incidental Take Statement (ITS) for five species negatively impacted by the pipeline were arbitrary and capricious because they were not enforceable. The court agreed, concluding that FWS failed to satisfy the requirements for a habitat surrogate for each species and thus failed to create enforceable take limits. Some of the groups further argued that NPS lacked authority under the Mineral Leasing Act (MLA) to grant a right-of-way to a gas pipeline and that the right-of-way permit it issued violated a requirement under the Blue Ridge Parkway Organic Act that all agency authorizations be consistent with the Blue Ridge Parkway's purposes. With respect to NPS authority under the MLA, the court concluded that the MLA neither authorizes nor precludes grants of rights-of-way across National Park System land. With respect to NPS authority under the Organic Act, the court concluded that NPS acted arbitrarily and capriciously by failing to explain the pipeline's consistency with the purposes of the Blue Ridge Parkway and the National Park System. Because FWS and NPS granted authorizations in contravention of their respective statutory requirements, the court vacated the ITS and right-of-way permit.