Federal appeals court deals another setback to proposed Mountain Valley Pipeline

By: - January 27, 2022 9:00 am
A worker laying portions of the Mountain Valley Pipeline in Roanoke County, Virginia in 2018. (Ned Oliver/Virginia Mercury)

A federal appeals court has again rejected permits issued by the U.S. Forest Service and the Bureau of Land Management allowing Mountain Valley Pipeline to cross three and a half miles and four streams in the Jefferson National Forest in Virginia and West Virginia.

In its ruling issued Tuesday, the Richmond-based Fourth Circuit Court of Appeals concluded that the federal agencies “inadequately considered the actual sedimentation and erosion impacts” of the pipeline, “prematurely authorized” the use of a stream-crossing method and “failed to comply” with a Forest Service rule governing forest management.

Mountain Valley Pipeline spokesperson Natalie Cox in an email said the developers “are thoroughly reviewing” the decision “and will be expeditiously evaluating the project’s next steps and timing considerations.”

Delays related to permitting and legal challenges have repeatedly pushed back the pipeline’s completion date and increased its budget. While the project’s backers initially projected it would be completed in 2018 at a cost of $3.7 billion, Mountain Valley most recently announced it expected to finish the 300-mile pipeline by summer 2022, with an overall price tag of $6.2 billion.

[Editor’s note: As Policy Watch has previously reported, a planned pipeline extension known as MVP Southgate would run from Chatham, Va., and enter North Carolina near Eden, in Rockingham County. From there, it would route nearly 50 miles southeast, cutting through Alamance County and ending in Graham. It too faces significant legal hurdles.]

This is the second time the Fourth Circuit has rejected permits from the Forest Service and BLM for the national forest crossing. In July 2018, the court vacated the approvals largely over concerns with how the agencies had reviewed sedimentation impacts.

Subsequently the agencies prepared supplemental environmental reviews and in January issued a second round of approvals for Mountain Valley Pipeline. A coalition of environmental groups including the Sierra Club, Wild Virginia and Appalachian Voices, many of whom were involved in the first round of litigation, immediately sued again.

The Fourth Circuit on Tuesday accepted many of the petitioners’ arguments that the Forest Service and Bureau of Land Management had failed to meet federal environmental requirements and “inadequately” considered the project’s erosion and sediment impacts.

“The Forest Service and the BLM erroneously failed to account for real-world data suggesting increased sedimentation along the pipeline route,” the court concluded.

In particular, the judges noted that the agencies’ environmental analyses had not included water quality data from U.S. Geological Survey monitoring stations 15 miles from the Jefferson National Forest that showed sedimentation downstream of the pipeline far exceeded predictions for the Roanoke River put forward in Mountain Valley Pipeline’s hydrologic analyses.

The court also agreed with the environmental groups that the agencies’ decision to allow the pipeline to use conventional boring to cross four streams within Jefferson National Forest was “premature” because an assessment of the method’s environmental impacts by the Federal Energy Regulatory Commission hasn’t yet been released.

The Fourth Circuit rejected several of the petitioners’ arguments, including that the agencies didn’t thoroughly evaluate alternative routes for the pipeline that wouldn’t impact national forests. The court concluded for a second time “that the agencies did, in fact, consider alternative routes but concluded that the environmental impacts would simply be shifted to other lands and the increased length of the pipeline’s route would affect more acreage, incorporate additional privately owned parcels, and increase the number of residences in close proximity to the pipeline.”

As they celebrated the decision Tuesday, environmental groups urged Mountain Valley to cancel the project.

The Fourth Circuit has agreed with us for the second time that federal agencies failed to show that the pipeline can comply with the law,” said Peter Anderson, Virginia policy director for environmental and consumer protection group Appalachian Voices. “It is long past time for the MVP’s investors to abandon this harmful project.”

Sarah Vogelsong is a reporter for the Virginia Mercury , which first published this report.

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