Mountain Valley Pipeline Faces FERC Permitting Roadblock (1)

The Federal Energy Regulatory Commission must revisit multiple orders allowing work on the Mountain Valley Pipeline to resume, after an appeals court held Friday that the agency had inadequately explained its decision to skirt certain review related to the project’s sedimentation impact.

The US Court of Appeals for the D.C. Circuit rejected most of the environmental groups’ challenges to FERC’s orders allowing construction to advance. However, the three-judge panel agreed with the groups’ claim that the regulator failed to adequately explain its decision to not prepare a supplemental analysis on erosion and sedimentation along the pipeline’s right-of-way.

But the court didn’t vacate FERC’s orders allowing work on the project to resume. It remanded them to the agency to allow it either to prepare a supplemental environmental impact statement or to better explain why one isn’t necessary.

“We see this ruling as creating an additional hurdle to restarting construction when MVP reacquires its outstanding permits this year, as it could force a longer review of that request and could push the project’s completion into 2024,” independent research firm Clearview Energy Partners said in an analysis.

The $6.2 billion pipeline—which aims to transport Appalachian shale gas to the eastern US—has seen a slew of legal challenges and regulatory hurdles that have delayed its completion, which puts it more than four years behind schedule and nearly double the original cost. The US Court of Appeals for the Fourth Circuit recently vacated the US Army Corps of Engineers’ approval to build the pipeline across water bodies in West Virginia.

The pipeline is about 94% completed, according to its developers, a consortium led by Pittsburgh-based Equitrans Midstream Partners LP, and the remaining 6% entails building across streams and protected habitats, which requires additional permits.

Environmental groups dispute that characterization and say that the pipeline is closer to 56% completed.

“Construction could continue in certain areas adjacent to wetlands, even while the company awaits permission from the Army Corps of Engineers to build within wetlands,” Chief Judge Sri Srinivasan wrote for the panel, saying that there is a “more-than-speculative chance” that Mountain Valley will reacquire the vacated Corps’ permit.

General Authorization

Mountain Valley has reacquired authorizations from the Bureau of Land Management, Forest Service, and Fish and Wildlife Service, originally vacated by the Fourth Circuit, according to the D.C. Circuit ruling.

Sierra Club, Appalachian Voice, and other allied groups claimed that FERC illegally allowed construction to resume even though Mountain Valley was still waiting on reauthorization to build in Jefferson National Forest.

But the appellate panel said that the invalidation of a specific federal authorization doesn’t invalidate an authorization to construct generally, “particularly if significant construction is already underway.”

The court found that the commission adequately explained why resuming construction was advisable—as developers had already put pipe in the ground but hadn’t yet completed restoration work. Leaving areas exposed to the elements would have caused gradual degradation and erosion.

“The commission reasonably concluded, then, that allowing construction to resume would benefit the environment, even without all other authorizations in place,” Srinivasan wrote for the panel.

The groups also claimed that Mountain Valley’s proposed control measures failed to minimize sedimentation impacts to the extent that FERC predicted, and the commission even acknowledged that there were different erosion outcomes than the final environmental impact statement projected.

FERC said that the outcomes were due to unpredictable rainfall and the effects aren’t significant enough to warrant a supplemental environmental impact statement. Mountain Valley also reached consent decrees with both Virginia and West Virginia to resolve the violations. The three-judge panel ruled that the decrees don’t afford a basis for declining to prepare a supplemental record.

Srinivasan was joined by Judges Patricia A. Millett and Robert L. Wilkins.

The groups are represented by Appalachian Mountain Advocates and the Sierra Club. The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Sierra Club v. Federal Energy Regul. Comm’n, D.C. Cir., No. 20-01512, 5/26/23.