Mountain Valley Pipeline Clears Permit Hurdle in 4th Cir. (1)

The Mountain Valley Pipeline overcame a legal hurdle moving it one step closer to resuming construction after the Fourth Circuit upheld a key state permit for the 303-mile natural gas pipeline project.

The Sierra Club, Appalachian Voices, and eight other conservation groups sued the Virginia State Water Control Board, alleging that its approval of a water protection permit and the Virginia Department of Environmental Quality’s water quality certification violated the federal Clean Water Act. The state failed to consider practicable alternatives for the planned stream crossings, the suit said.

The US Court of Appeals for the Fourth Circuit ruled that the agencies correctly approved the application, which could allow MVP to keep their 2023 in-service goal within reach, in an opinion by Judge Stephanie D. Thacker.

The court rejected the argument that the agencies failed to consider alternative sites for MVP’s proposed crossings, and agreed with the state that changing one stream crossing would alter the pipeline’s sitting in other places—altering Federal Energy Regulatory Commission siting determinations.

The agencies considered expert feedback about MVP’s proposed crossing methods, held public meetings, considered the state’s water quality standards, and didn’t simply “rubber stamp” the proposed crossing methods, the court said.

“All told, we are satisfied that the agencies considered the relevant data and provided a satisfactory explanation for their conclusion,” Thacker wrote.

The pipeline—which aims to transport Appalachian shale gas to the eastern U.S.—is more than 90% constructed, according to the pipeline developers, a group led by Pittsburgh-based EQT Corp., the largest US natural gas producer. But the project has seen a slew of legal challenges and regulatory hurdles that have delayed its completion, putting it more than four years behind schedule and nearly doubling the original cost.

A similar suit challenging the West Virginia Department of Environmental Protection’s approval of a key permit is also pending in the Fourth Circuit, and a decision is expected shortly. A ruling in that case has the potential to delay the project further.

If the Fourth Circuit greenlights West Virginia’s water quality certification, FERC reissues its biological opinion and incidental take statement, and the Forest Service reissues its biological opinion, MVP could have all of its permits in hand by late May, analysts at Clearview Energy Partners said in a report. It could then ask FERC to allow it to resume construction and complete the project in early summer, the analysts said.

Thacker was joined by Judges Roger L. Gregory and James Andrew Wynn.

AquaLaw PLC and Hunton Andrews Kurth LLP represent Mountain Valley Pipeline. The Southern Environmental Law Center represents Preserve Bent Mountain and Preserve Giles County. Appalachian Mountain Advocates represents the remaining conservation groups.

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. State Water Control Bd., 4th Cir., No. 21-2425, 3/29/23.