After the Deluge: Court Cases Go from Bad to Worse for Mountain Valley Pipeline

On April 7, Mountain Valley Pipeline, a 303-mile partly constructed pipeline that would carry highly pressurized fracked natural gas from West Virginia to Virginia, was in federal court again, this time in the Court of Appeals for the D.C. Circuit. After losing a string of cases in the Richmond based Fourth Circuit Court of Appeals, MVP was hoping for a more friendly reception in D.C. for a project that has been in the works since 2014.

It had been a brutal four months for this ill-fated project, which is years behind schedule and billions of dollars over budget. The repeated delays are the result of poor construction practices and MVP's arrogance in trying to shortcut permitting processes. With erosion and sediment control failures, and the resulting muddy runoff from construction sites, MVP been fined millions of dollars in multiple enforcement actions in Virginia and West Virginia. Numerous court decisions have thrown out Trump era permits that themselves were the result of shoddy politicized reviews.

Mountain Valley Pipeline is a climate busting project that would produce greenhouse gas emissions that on an annual basis would be the equivalent of 18 average U.S. coal plants.

In December, the Virginia Air Pollution Control Board, by a 6-1 vote, refused to issue a permit for a compressor station for MVP Southgate, a 75-mile pipeline that would extend MVP from Virginia to North Carolina. Previously, the North Carolina Department of Environmental Quality had twice refused to issue a permit for Southgate itself.

On January 25, a three-judge panel of the Fourth Circuit threw out--for the second time--permits issued by the U.S. Forest Service and the Bureau of Land Management for MVP to cross the Jefferson National Forest. The court concluded that those agencies failed to adequately consider sedimentation and erosion impacts caused during construction.

One week later, on February 3, the Fourth Circuit concluded--again for the second time--that the Fish and Wildlife Service violated the Endangered Species Act, this time with respect to two endangered fish--the Roanoke logperch and the candy darter--when it issued its 2020 Biological Opinion and Incidental Take Statement for MVP. As to a third endangered species, the Indiana bat, the court recommended that the Fish and Wildlife Service explain why it "anticipates no effects to the bat from clearing more than 1,000 acres of suitable but unoccupied summer habitat." It also suggested that there may be other deficiencies in the agency's earlier determinations.

Following those decisions, the Army Corps of Engineers, which has jurisdiction over the hundreds of water bodies that MVP would have to cross, announced that it would not proceed until there was a valid Biological Opinion in place. NextEra Energy, Inc., a 31% owner of MVP, wrote off its entire investment and stated there was a "very low probability" the pipeline would ever be completed. RGC Resources, Inc., another MVP investor, suggested it would do likewise. And Equitrans Midstream, which owns 46% of the project, refused to say when it might be put in service.

Meanwhile, MVP filed inflammatory requests that the entire 14-member Fourth Circuit throw out both decisions by the three-judge panels, invoking "national security" and Russia's brutal war on Ukraine as pretexts for increasing our reliance on fossil fuels. And they enlisted the help of Senator Joe Manchin (D-W.V.), who went on a weeks' long tirade against the Fourth Circuit and FERC.

Adding insult to injury, on March 25 and again on April 1, the Fourth Circuit rejected MVP's requests for rehearing. Not a single member of the court even requested a poll of the judges.

With this deluge of bad news, Mountain Valley Pipeline naturally was hoping for a good day on April 7, when it appeared for oral arguments in a challenge to the Federal Energy Regulatory Commission's decision in 2020 to issue a two-year extension to MVP's certificate of public convenience and necessity. The FERC certificate is the fundamental permit required for an interstate pipeline project. It is what allowed MVP, which joined the case to defend the FERC permit, to use eminent domain to take private land for the project.

The main issue considered by the D.C. Circuit was FERC's failure to do a supplemental environmental impact statement before issuing the certificate extension, one that would consider the sedimentation and construction runoff that had happened after FERC initially approved construction in 2017.

MVP had reason to hope for a good reception from the D.C. Circuit. After all, in 2019 that same court had rejected a challenge to the original FERC certificate.

But that was then, and this is now.

For starters, Judge Patricia Millett said that it "just seems troubling" that FERC had not issued a stop work order in response to the Fourth Circuit decisions. FERC's lawyer meekly answered, "I can understand you saying that." Chief Judge Srinivasan added that it "also seems out of step with what the Commission itself has done in this case" noting that in response to an earlier Fourth Circuit decision on MVP, "a stop work order came down within days." Judge Millett added: "Four days."

But those observations were just storm clouds, compared to the flood of concerns that the court served up. Judge Millett challenged FERC's and MVP's claims that the construction difficulties were all the result of historic rainfall in 2018. She noted that the original certificate included measures that were supposed to avoid precisely these types of problems, but that when construction began "things went south." She observed that the enforcement actions in Virginia and West Virginia led to what the Commission itself called "important new measures," which suggested that the original conditions in the Certificate were insufficient or that conditions were far worse than FERC had predicted. She said that all of this added up to "profoundly changed circumstances" that suggested that a new environmental impact statement was required.

Judge Millett also pressed FERC to tell her precisely when the "historic rainfall" occurred and, when the FERC attorney tried to blur the lines, she answered her own question. She noted that it was only for a few months in 2018 and that construction problems plagued the project for a longer period of time. She added:

"The historic rainfall wasn't for a full year, this wasn't like the times of Noah....Saying there was a lot of rain in 2018 doesn't sound responsive to me."

And there it was. After having spent years blaming its woes on the weather and the Fourth Circuit, basically on everything and everyone but themselves, MVP was now having its lies exposed.

MVP can demagogue about the war in Ukraine, using that as a false pretext to increase our dependence on fossil fuels. It can lie about how the project is "almost done" - it actually is barely more than 50% complete based on the company's own figures. And it can enlist politicians to pressure federal agencies. But none of that will avoid the permitting hell in which MVP now finds itself.

To be sure, MVP will continue to ramp up the political heat, hoping federal agencies will buckle under. And they may achieve some limited success. In fact, the day after the D.C. Circuit hearing, FERC approved an amendment to the MVP certificate that would allow it to change the method by which it would cross water bodies along the route.

But none of that will change the fundamental problem for MVP. Even the latest FERC order may be a pyrrhic victory. FERC stated that "we will require that Mountain Valley obtain the necessary Corps authorizations for all the remaining waterbody crossings before the commencement of construction associated with any remaining waterbody crossings is authorized." Likewise, "before Mountain Valley can begin construction...it must receive a revised or new [Biological Opinion] from [Fish and Wildlife Service]" and "ESA consultation with FWS for the Amendment Project must be complete." FERC added that "Mountain Valley remains prohibited from constructing in the Jefferson National Forest."

MVP and its apologists will use this latest FERC order to claim that all is smooth sailing now. But the truth is that MVP still lacks the permits required to even begin construction again, let alone complete the project. And if the April 7 oral argument is a good barometer, there is now the very real possibility that when the D.C. Circuit rules, it will throw out the FERC certificate extension, which expires in any event in October.

Mountain Valley Pipeline is a climate busting project that would produce greenhouse gas emissions that on an annual basis would be the equivalent of 18 average U.S. coal plants. Scientists are urgently telling us that we must immediately reduce greenhouse gas emissions if we are to have any hope of avoiding the worst effects of climate change.

It is not the "times of Noah" and we don't have an ark.

It is long past time for Mountain Valley Pipeline to pack up and go home.