MVP Construction Resumes After Delays
Last week, the U.S. Supreme Court reportedly began paving the way for construction to resume on the Mountain Valley Pipeline, granting a request to lift lower court orders that had recently halted the project and delayed its completion.
According to the report, the brief order vacates stays that were issued by the U.S. Court of Appeals for the 4th Circuit for the cases brought by environmental organizations opposed to the pipeline. Additionally, it was reported that there were no noted dissents to the order.
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.
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.
The Supreme Court has cleared the way for construction of the controversial Mountain Valley Pipeline to proceed, granting an emergency request from backers of the project that has the support of Congress and the Biden administration https://t.co/Jf8zZ7RuAF— CNN (@CNN) July 27, 2023
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.
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.
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, at the time, was October 13, 2026.
The approved 18-page order, issued August 23, was in response to Mountain Valley’s extension request submitted in June as the previous October 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.”
Last month, 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 reviewed 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.
Challenges from The Wilderness Society and other environmental groups had reportedly caused a pause in construction as the 4th Circuit Court reviewed the issue. If approved, the challenges would reportedly have affected a much larger portion of the approximately 300-mile pipeline. The three-judge panel had reportedly previously rejected permits for the project.
Additionally, a coalition of environmental groups had 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.
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.
According to the report, after agreeing to review the various agency stations, the 4th Circuit heard arguments for the cases last Thursday (July 27).
The pipeline had reportedly filed an emergency application with the Supreme Court, seeking to resume the project and arguing that the 4th Circuit did not have the ability to grant relief since it “lacked jurisdiction” over the environmental groups’ permitting challenges.
“In all events, Section 324 is a valid exercise of Congress's Article I powers to establish standards for environmental permitting and to prescribe the jurisdiction of the lower courts. In exercising those authorities, Congress did not impinge on the Article III judicial power,” lawyers for MVP wrote.
MVP also reportedly stated that the provision of the debt ceiling package renders the case moot, since Congress ratified the relevant agency actions in the legal battles. MVP warned that leaving the 4th Circuit’s pause in place would delay its completion before spring 2024 and lead to increased demand for gas in regions served by the pipeline.
"As soon as it is completed, the Pipeline will provide a reliable source of natural gas and help insulate customers from severe price fluctuations—reducing costs for consumers and businesses at exactly the time demand will be most intense," the company's lawyers wrote. "If the stays remain in place, however, individuals and businesses will have to endure yet another winter season of price spikes and supply shortages."
According to the report, the Biden Administration, West Virginia Senator Joe Manchin and the GOP-led House sided with MVP in the dispute and urged the Surpreme Court to lift the lower court orders.
"Congress exercised its Article I and Article IV powers to make the following policy decision: federal law will facilitate the prompt completion of the Pipeline and commencement of its operation," the House's Office of General Counsel wrote in a friend-of-the-court brief.
Lawyers for the Wilderness Society also reportedly urged the Supreme Court to allow the lower court order to remain untouched, accusing Congress of enacting a provision that violates the Constitution and “crosses the line between legislating and judging."
"Congress overstepped the line that separates legislating and judging when it enacted Section 324 by picking winners and losers in pending litigation without supplying new substantive law," the Wilderness Society wrote in a filing to the Supreme Court.
The group also reportedly argued that the provision is “independently unconstitutional” since it strips jurisdiction to guarantee the government and MVP would win in the pending litigation over approvals.
“Allowing construction of this destructive and unnecessary fracked gas pipeline to proceed puts the profits of a few corporations ahead of the health and safety of Appalachian communities," said Jamie Williams, president of the Wilderness Society. Williams added that he and the group will "exhaust every effort to stop it."
The lead plaintiff in the second case, Appalachian Voices, as well as the nine environmental groups reportedly separately accused MVP of appealing to Congress to protect the project after suffering earlier court losses.