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What's next for the court cases challenging Mountain Valley Pipeline?

May 21, 2023May 21, 2023

Workers laying the Mountain Valley Pipeline in Roanoke County. (Ned Oliver / Virginia Mercury)

Although the Mountain Valley Pipeline won fast-tracked approval from Congress last week, environmental groups are still exploring possible legal challenges to prevent it from moving forward.

President Joe Biden on Saturday signed the Fiscal Responsibility Act, which includes a measure that directs federal agencies to approve permits within 21 days for the 303-mile natural gas pipeline that will supply gas from the Marcellus and Utica shale fields to southern Virginia.

The measure also includes a provision that removes judicial authority to review any federal approvals, and mandates that any challenges to the broader law be heard in the U.S. Court of Appeals for the District of Columbia. Most legal challenges to the project have been heard in the Richmond-based U.S. 4th Circuit Court of Appeals.

The constitutionality of the provision removing the 4th Circuit's authority to review permits is what is seen as a possible legal avenue for a challenge, said David Sligh, conservation director for Wild Virginia, one of several environmental groups that have been involved in lawsuits over the pipeline.

Three cases over pipeline permits remain active in the 4th Circuit: one against the U.S. Fish and Wildlife Service over impacts to endangered species and two against the U.S. Forest Service and Bureau of Land Management over sediment and erosion issues related to the project.

Mountain Valley Pipeline has filed motions to dismiss all three cases, citing the Fiscal Responsibility Act.

"Because the plain language of the Act now divests this Court of jurisdiction over this petition and separately moots Petitioner's claims, the Court must dismiss the Petition," wrote George P. Sibley III, a lawyer for Mountain Valley Pipeline, in one of the motions.

Sligh said environmental groups are considering challenging the Fiscal Responsibility Act's provision eliminating judicial review of agency approvals as a breach of the separation of powers clause.

"A lot of us believe that the law that was passed could be unconstitutional," said Sligh.

A potential stay of the project during such a legal challenge is also among the options being considered to prevent it from continuing, said Victoria Higgins, Virginia director for Chesapeake Climate Action Network, another environmental group involved with litigation against the project.

"We will explore every avenue to try to delay the project and end the project," said Higgins.

The environmental groups have until June 15 to file a response to Mountain Valley Pipeline's motion to dismiss the cases. Derek Teaney, an attorney with Appalachian Mountain Advocates, a firm representing several of the environmental groups involved in the pending cases, declined to comment.

Mountain Valley Pipeline spokeswoman Natalie Cox said the company "will not provide speculative comment regarding challenges that may or may not occur."

Construction on the pipeline began after the Federal Energy Regulatory Commission gave initial approval in 2017. Expected to be completed in 2018, the pipeline has faced several legal challenges. A fourth case over the most recent four-year extension of its approval from FERC is pending in the D.C. Court of Appeals.

While Mountain Valley has recently regained several permits it requires, the project still needs a U.S. Army Corps of Engineers approval for waterbody crossings, which the company wrote in a letter to the court it does not expect to receive before June 15.

"Mountain Valley … will not engage in additional work (beyond continuing site maintenance, repair, and stabilization tasks), including work in the Jefferson National Forest, until it receives that permit," Sibley wrote in a May 30 letter.

The company says the project is 94% complete, though environmental groups are skeptical of that number.

"It is important to note that the ongoing legal challenges criticizing the regulatory approval process have been the driving force in delaying MVP's construction completion, which, in turn, also delays final restoration activities that lead to more permanent environmental protection," Cox said.

Sligh said Virginia residents and environmental groups will be looking to the Virginia Department of Environmental Quality and federal agencies to ensure compliance under their permits. He pointed to a 2021 law that allows the state to issue stop work orders for violations of land-disturbing activities from pipeline projects.

Representatives of the company say the project has devoted 150 to 250 workers exclusively to ensuring compliance with erosion controls.

"More than 2 million man hours have been spent protecting Virginia's natural resources through the maintenance and repair of water bars, sumps, silt fences, filter socks and other devices," a 2021 video produced by Mountain Valley Pipeline states.

However, Jessica Sims, a coordinator with Appalachian Voices, another environmental nonprofit involved in the litigation, said the fight against the project will continue.

"It's a project that can't be constructed [in a way] that complies with environmental laws," Sims said.


by Charlie Paullin, Virginia Mercury June 9, 2023

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Charles Paullin covers energy and environment for the Mercury. He previously worked for Northern Virginia Daily in the Northern Shenandoah Valley and for the New Britain Herald in central Connecticut. An Alexandria native, Charles graduated from the University of Hartford initially wanting to cover sports. He's received several Virginia Press Association awards for his coverage of crime, local government and state politics.