Legal Challenges Against Pipelines Heat Up

Construction of the Mountain Valley Pipeline is now halted at nearly all stream crossings in West Virginia and Virginia, following a court ruling in early October. This is in addition to a July court-mandated halt to construction in the Jefferson National Forest.

On Oct. 2, the U.S. Fourth Circuit Court of Appeals voided a necessary Clean Water Act permit needed for the Mountain Valley Pipeline to be constructed across streams and waterways throughout most of its proposed route in West Virginia. The permit had been issued by the Army Corps of Engineers.

Then, on Friday, Oct. 5, the Army Corps suspended the Mountain Valley Pipeline’s permit for 383 streams crossings and 142 wetland crossings in Virginia. The Roanoke Times reported that a letter to Mountain Valley from William Walker, chief of the regulatory branch of the Corps’ Norfolk division, stated that the permit was pulled to halt construction while they “await clarity on this issue.”

The case centered on Mountain Valley’s inability to comply with a West Virginia condition requiring that stream crossings be completed in 72 hours or less to qualify for the broader, one-size-fits-all Clean Water Act permit that the Army Corps used. The record showed Mountain Valley Pipeline would need far longer to build across some of the larger rivers along the route.

The court’s order is a victory for nonprofit law firm Appalachian Mountain Advocates, which represented the Sierra Club, West Virginia Rivers Coalition, Indian Creek Watershed Association, Chesapeake Climate Action Network and Appalachian Voices, the publisher of this newspaper.

In the wake of the ruling, Appalachian Mountain Advocates expects the Corps will now have to conduct “a significant environmental assessment” to issue an individual Clean Water Act permit for the pipeline instead of the broader permit. The groups are now arguing that the Federal Energy Regulatory Commission should issue a stop-work order for the entire pipeline because the certificate that gives Mountain Valley permission to proceed is contingent upon securing all other required federal permits.

“By vacating permit after permit for the MVP, the Fourth Circuit has been forced to do what the federal government should have been doing all along: protecting the public and the environment from this harmful and unneeded pipeline,” Chesapeake Climate Action Network General Counsel Anne Havemann said in a press release.

“The public deserves no less than for regulators to take a real look at the impacts of this massive project,” she added. “Once they do, we’re confident they will conclude that there is simply no safe way to build the Mountain Valley Pipeline.”

Related: Mountain Valley Pipeline Sparks Anger

According to ProPublica and the Charleston Gazette-Mail, West Virginia regulators are merely rewriting their rules to allow the project to proceed, instead of considering the ramifications of the pipeline. Afterwards, Mountain Valley would apply for a new permit, expected in early 2019.

Actions against the Mountain Valley Pipeline have already taken a large toll; on Sept. 24, developers announced that the estimated cost of the pipeline was raised to $4.6 billion, a nearly $1 billion increase. TransCanada’s Mountaineer XPress Pipeline in West Virginia also announced a nearly $1 billion increase, due primarily to competition from other companies building fracked gas infrastructure causing the cost for land acquisition and contractor services to increase.

On Oct. 16, FERC allowed Dominion Energy to begin non-mechanized tree-felling for an Atlantic Coast Pipeline compressor station in Buckingham County, Va., according to S&P Global. Residents of the predominately African-American community of Union Hill, where the station would be located, have expressed concern about the impact it would have on air quality.

Members of the Virginia Governor’s Advisory Council on Environmental Justice visited Union Hill earlier this year. Community advocates have told the council that Union Hill has been overlooked during the regulatory process for the pipeline and compressor station.

Dominion Energy still needs an air pollution permit for the compressor station from state regulators. The Virginia Department of Environmental Quality will hear public arguments regarding the permit on Nov. 8 and 9.

In August, FERC issued stop-work orders for the Mountain Valley and Atlantic Coast pipelines after the Fourth Circuit Court stripped away key permits. Although the orders have since been lifted, construction on sections of the two pipelines is still being contested in court, and new protests have sprung up along the routes of both. The Fourth Circuit’s decision is one of the latest in a series of legal actions against pipelines in the region.

On Sept. 25, Virginia and West Virginia landowners brought a case before the Fourth Circuit challenging the use of eminent domain to seize land for pipelines, as well as the decision to allow the project to progress without compensating landowners. Fourth Circuit Court of Appeals Chief Judge Roger Gregory questioned the use of eminent domain to take land for pipelines before landowners are paid, which was enabled by the federal court 14 years ago.

“This is something extraordinary the courts have granted and the question is should it happen now before [payment is] done,” Gregory said, as reported by Courthouse News Service. “You want to abort the [normal and lengthy eminent domain] process and take it now.” A lawyer representing Mountain Valley argued, “We have the right to it now. It was done with notice, these landowners had discovery and evidence hearings.”

But Chris Johns, an attorney representing the landowners, stated that the practice is an abuse of power, according to Courthouse News Service. A decision was not announced by press time on Oct. 4.

Later that week, on Sept. 28, federal judges on the Fourth Circuit Court of Appeals heard arguments involving that case and three others related to the Mountain Valley and Atlantic Coast pipelines. Gregory asked the Forest Service why it weakened sediment and erosion controls for pipelines traversing across steep slopes. Lawyers for both the Forest Service and Dominion flatly denied that their environmental standards had been lowered.

In a separate case that day, the judges also questioned the legitimacy of the Army Corps of Engineers’ decision to allow state regulators to rewrite rules for the Mountain Valley Pipeline in 2017, which led to the court striking the Corps’ Clean Water Act permit in late September, according to the Charleston Gazette-Mail.

Also on Sept. 28, judges heard environmental groups appeal a Virginia water quality permit issued to the Atlantic Coast Pipeline, and separate arguments that appraisers for the Mountain Valley Pipeline did not consider coal under select properties, according to the Charleston Gazette-Mail.

On Sept. 24, the Fourth Circuit ordered a halt to a U.S. Forest Service permit for the Atlantic Coast Pipeline while it decides a case brought by several environmental groups represented by the the Sierra Club and the Southern Environmental Law Center, a nonprofit law firm. The previous week, FERC allowed Dominion Energy and other developers of the pipeline to resume clearcutting through roughly 20 miles of the George Washington and Monongahela national forests.

“Because of this decision, chainsaws will remain idle until the court has had an opportunity to decide our case,” said SELC Senior Attorney D.J. Gerken in a press release. “For the same reason, FERC should stop construction elsewhere until these issues are resolved, to avoid wasting ratepayer dollars building a route that may not be viable.”

In an argument similar to that used by pipeline opponents to strip Mountain Valley of a Forest Service permit in July, the groups are alleging that the agency arbitrarily amended the forest plans to allow construction of the Atlantic Coast Pipeline.

On Sept. 18, West Virginia Judge Robert Irons ordered a pause on a state permit allowing Mountain Valley Pipeline developers to tunnel under the Greenbrier River in Summers County, W.Va., and split Ashby Berkley’s riverside property in half.

Berkley owns two rental homes and has a campground on the land. He values the parcel at $535,000. When he turned down Mountain Valley’s offer of $34,000 for the pipeline’s right-of-way, the company seized it through eminent domain.

“It just completely destroys my property,” Berkley said in March. “I will not run a commercial campground on top of that pipeline. I don’t think anybody would want to stay over a place that could blow.”

Citizen groups argued that the delay was necessary to make sure the merits of the river crossing were properly reviewed before construction, according to the POWHR Coalition, a network of groups opposing the expansion of fossil fuel infrastructure.

Mountain Valley Pipeline attorneys, however, argued that this would postpone the river crossing until summer 2019 since construction can only take place during certain months — but Judge Irons noted that Mountain Valley has shifted its deadlines in the past when challenged.

According to the Register-Herald, Irons stated, “I have heard that before on cases involving the Mountain Valley Pipeline,” referring to a previous case involving tree-sitters in the path of the pipeline. “It was represented that there was a hard deadline. Well, that deadline got extended for a couple months. It seems to me that these deadlines aren’t really set in stone on this particular project.”

A hearing is set for Oct. 23.

“In highlighting the constantly moving deadlines that MVP brings to show irreparable harm in court, Judge Irons said what most in positions of power have been afraid to say: federal and state agencies are and will continue to bend over backwards to allow MVP to be built,” said POWHR Coalition Executive Committee Member Maury Johnson in a press release.

Author’s Note: This story was updated from the print version on Oct. 17, 2018, to include new information about Mountain Valley and Atlantic Coast pipeline permit disputes, and the fact that Pennsylvania regulators have issued three new notices of violation for the Mariner East 2 Pipeline since Oct. 4.