THURSDAY, JULY 13, 2023
On Monday (July 10), the 4th U.S. Circuit Court ordered construction to halt again on the Mountain Valley Pipeline in the Jefferson National Forest in Virginia, as it reviews recent challenges to the project posed by environmental groups. The order to stop construction comes only shortly after approval for project completion was granted on June 28.
According to reports, the lawsuit was filed by The Wilderness Society, a Washington, D.C.-based land conservation group, arguing that Congress had violated the separation of powers doctrine by passing a law to expedite the project in May.
Project Background
First approved in 2017, the project has been delayed by opposition, lawsuits and violations on construction sites over environmental regulations.
The pipeline is owned and being constructed by Mountain Valley Pipeline LLC—a joint venture between EQT Midstream Partners LP, NextEra US Gas Assets LLC, Con Edison Transmission Inc., WGL Midstream and RGC Midstream LLC. Once complete, the pipeline is slated to be operated by EQT Midstream Partners.
Federal court stops construction of Mountain Valley Pipeline in national forest https://t.co/o8SJ1ZFGTz via @roanoketimes
— Jess Sims (@suntostandstill) July 10, 2023
The Mountain Valley Pipeline is expected to run from northwestern West Virginia to southern Virginia, cutting through the Jefferson National Forest. The project is the smaller of two currently underway in the state of Virginia; the other is the Atlantic Coast Pipeline, which is twice as long and passes through the center of the state but does not cut through Jefferson National Forest.
On July 27, 2018, an order from the U.S. Court of Appeals for the Fourth Circuit turned over prior decisions made by the Bureau of Land Management and the Forest Service authorizing construction of the 303-mile pipeline. In early August of that year, the U.S. Federal Regulatory Commission ordered work on the pipeline to cease, alleging that two U.S. agencies had not fully examined the projects.
A few months later, in October, the project was blocked yet again, but this time by the U.S. Army Corps of Engineers, suspending a permit that would allow the pipeline to cross more than 500 streams and wetlands in southwest Virginia. The following month, MVP filed an application with FERC for a 73-mile Southgate permit pipeline extension.
In mid-July 2019, FERC released a request for “toxicological, environmental and health information” from the Mountain Valley Pipeline’s corporate attorney regarding the coatings used on the project’s 42-inch diameter steel pipe. In August, project developers told federal regulators that the coating in question, specifically on stretches in Virginia and West Virginia, does not pose a threat of harm. Also, in August, the developers voluntarily suspended construction on stretches of the pipeline in light of a recent lawsuit that sought to address concerns about the project’s impact on local endangered species.
By October, work on the project ceased once again as the pipeline developer was ordered to pay $2.15 million to resolve a lawsuit brought on by Virginia regulators. In the lawsuit, the accusing party cited repeated violations of environmental standards. The agreement also required that the company submit court-ordered compliance to curb erosion and sedimentation.
A lawsuit cited the project developer for the violation of stormwater control measures more than 300 times. Those flaws have reportedly been corrected and the company has agreed to certain conditions including independent inspections, but those carrying out the investigations must be monitors approved by the DEQ.
At the beginning of 2020, FERC released an environmental impact statement concluding that while an 75-mile-long extension into North Carolina—also known as the MVP Southgate Project—could cause some environmental damage, they were favorable of the project moving forward.
In September 2020, on behalf of Mountain Valley Pipeline LLC, representing attorney Matthew Eggerding filed a letter with FERC in requesting that a stop-work order be lifted.
In December 2021, two water permits were approved for the pipeline, raising concerns over its impacts on the environment and sparking lawsuits including a Virginia State Water Control Board permit for the pipeline to cross about 150 streams and wetlands in Southwest Virginia and a West Virginia Department of Environmental Protection water quality permit.
Prior to having the Nationwide Permit 12 from the U.S. Army Corps of Engineers invalidated, more than half of the almost 1,000 stream and wetland crossings in the two states were completed. MVP sought an individual permit from the Army Corps, which could only be provided after state approval.
Following the approval, opposition groups, including the Sierra Club and Appalachian Voices, filed a petition with the 4th U.S. Circuit Court of Appeals, citing that the pipeline should not be permitted to continue based on past violations. Mountain Valley officials responded saying the problems were largely caused by heavy rain in 2018 and have been corrected.
A few days later, the WVDEP approved the water quality permit for the pipeline. This permit was the final one needed before the Army Corps could move forward with dredge-and-fill permits in the states.
Then in April 2022, the FERC issued an order approving changes proposed for the Mountain Valley Pipeline Project, including how the pipeline will cross 183 waterbodies and wetlands. The application was filed by Mountain Valley Pipeline LLC in February last year to amend the original 2017 certificate for the pipeline. The order allows the developer to bore under the bodies of water instead of using the originally approved open-cut method.
The order was unanimously approved on April 8 by the FERC, according to the 72-page order.
Project Extension
In August of last year, the Federal Energy Regulatory Commission approved a new deadline for the Mountain Valley Pipeline to be completed more than four years after construction was started. The new deadline for completion for the natural gas pipeline is Oct. 13, 2026.
The approved 18-page order, issued Aug. 23, was in response to Mountain Valley’s extension request submitted in June as the previous Oct. 13, 2022, deadline approached. The commission explained that its decision in 2017 had been upheld on appeal and that additional comments about need “are improper collateral attacks on that order and need not be considered further.”
FERC reported they received many comments both in opposition and support of the extension request. Specifically, the commission noted that multiple individuals whose land the project crosses filed comments expressing support for an extension and to complete restoration of their properties as “expeditiously as possible.”
Newest Updates
According to reports, challenges from The Wilderness Society and other environmental groups caused a pause in construction as the 4th Circuit Court reviews the issue. If approved, the challenges would reportedly affect a much larger portion of the approximately 300-mile pipeline. The three-judge panel has reportedly previously rejected permits for the project.
“In sum, a stay would protect the public interest in forestalling unlawful environmental harm and would not impair any other public interests,” wrote Spencer Gall, an attorney representing the Wilderness Society, to The Roanoke Times.
Additionally, a coalition of environmental groups has reportedly contested the U.S. Fish and Wildlife Service’s finding that endangered species would not be harmed by the new pipeline. The groups, led by Appalachian Voices and including the Sierra Club and Wild Virginia, are reportedly also disputing the federal opinion that the pipeline would not harm protected endangered species in the area.
The issues at hand reportedly revolve around a part of the Fiscal Responsibility Act that ordered federal authorities to approve all remaining permits for the pipeline. This provision had also reportedly protected the pipeline from further legal challenges by removing judicial review of permits, something that environmental groups are saying amounts to an unconstitutional violation of the separation of powers.
“Time and time again, Mountain Valley has tried to force its dangerous pipeline through the Jefferson National Forest, devastating communities in its wake and racking up violations. We’re grateful that the Court has given those communities a measure of reprieve by hitting the brakes on construction across our public lands, sparing them from further irreversible damage while this important case proceeds,” Ben Tettlebaum, director and senior staff attorney at The Wilderness Society, said in a statement in Cardinal News.
In a statement released by Equitrans Midstream, the company expressed their disappointment with the court’s decision to halt construction, which was reportedly around 90% complete.
“We are evaluating all legal options, which include filing an emergency appeal to the U.S. Supreme Court. Unless this decision is promptly reversed, it would jeopardize Mountain Valley’s ability to complete construction by year-end 2023,” Equitrans said.
According to reports, a White House spokesperson could not be immediately reached for comment, though in the past the administration has argued that the pipeline is needed for the nation's energy security.
Tagged categories: Environmental Controls; Environmental Protection; Federal Energy Regulatory Commission (FERC); Government; Health and safety; Lawsuits; Oil and Gas; Ongoing projects; Pipeline; Pipelines; Pipes; Program/Project Management
