Dominion and Duke Energy in late July lost yet another federal permit to build the ill-conceived Atlantic Coast Pipeline. 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 bumble bee, a bat, a mussel and a tiny blind crustacean are in the proposed path of the 42-inch fracked-gas pipeline. All four species are on the brink of extinction.

According to the Endangered Species Act — at least as it’s currently written — if a project like the pipeline is going to kill or harm a species on the brink of extinction, or destroy its habitat, it must have a permit from the federal agency in charge of protecting the endangered species — in this case, the U.S. Fish and Wildlife Service.

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 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 in its path: the rusty-patched bumble bee, the Madison Cave isopod, the club shell 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, Va., where a toxic compressor station for the pipeline is planned in a community of descendants of freed slaves? Wasn’t all that enough to stop the pipeline?

Don’t get me wrong; I’m thankful for the Endangered Species Act, but how does the law wield so much power? By way of background, the Endangered Species Act of 1973 was passed unanimously by the Senate and nearly so — 390-12 — in the House. It was signed into law by President Richard Nixon.

Leonor Sullivan, a Missouri Democrat in the U.S. House of Representatives, succinctly laid out the reason for the law 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.”

Aldo Leopold, the father of wildlife conservation in the United States said it this way: “The first law of intelligent tinkering is to save all the parts.”

In other words, and in this context, it isn’t wise to wipe off the face of the Earth a species that could hold the cure for a deadly human ailment.

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, that contains compounds active against both hepatitis C and diabetes. The drug paclitaxel, known by the proprietary name Taxol, is a compound found in the bark of the Pacific yew, once considered a weed. The drug is now the standard treatment for advanced stages of ovarian cancer. The blood from horseshoe crabs, harvested without killing the animal, is widely used in the pharmaceutical industry to test drugs for contaminants.

I have three friends who have a glioblastoma, the deadliest of brain tumors and the one that took the life of U.S. Sen. John McCain. 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, eliminating it entirely as a potential source of medicine, just so a corporation can make more money from their captive ratepayers?

The permit for allowing the elimination or “taking” of an endangered species or its habitat by Dominion was first vacated in court on Aug. 6, 2018, but the Fish and Wildlife Service reissued the permits just a few weeks later. Those are the permits the Fourth Circuit just 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 Roger Gregory in the decision.

The facts didn’t add up. Or were they facts? A unanimous panel of three federal judges didn’t think so. And their characterization of the Fish and Wildlife Service’s rationale for the permit as arbitrary and capricious suggests the decision to issue it in the first place was politically calculated.

If a bee, a bat, a mussel and a crustacean can stop Dominion’s destructive pipeline, I’m all for it. I just wish the people in its path had as much standing in court as the critters.

Robert “Bobby” Whitescarver is a farmer, author, educator and environmental consultant. His views do not necessarily reflect those of the Bay Journal.

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