Defenders of Wildlife v. U.S. Department of the Interior, No. 18-2090 (4th Cir. 2019)Annotate this Case
The Fourth Circuit granted a petition for review of the FWS's new 2018 Biological Opinion and Incidental Take Statement in connection with the proposed Atlantic Coast Pipeline. The court held that FWS arbitrarily reached its no-jeopardy conclusions and failed to correct the deficiencies in the take limits that the court identified in the previous appeal.
In this case, the Biological Opinion's conclusion that the pipeline will not jeopardize the rusty patched bumble bee (RPBB) in Bath County, Virginia was arbitrary and capricious because it runs counter to available evidence, relies on data without providing a meaningful basis for that reliance, fails to consider the species’s status as a whole, and fails to consider the pipeline’s impacts on RPBB recovery. Furthermore, the Biological Opinion's finding that the clubshell's continued survival will not be jeopardized by the pipeline construction was not in accordance with the law and failed to consider important aspects of the issue before the agency. The court also held that the Biological Opinion failed to create enforceable take limits for the Indiana bat and the Madison Cave isopod. Accordingly, the court vacated the 2018 Biological Opinion and Incidental Take Statement.