Mountain Valley Pipeline Dealt Two Blows By U.S. Court of Appeals

In an effort to capitalize on the natural gas contained in the Utica and Marcellus shale formations in West Virginia, Equitrans Midstream Corp. is constructing the Mountain Valley Pipeline running through eleven West Virginia counties and Southeastern Virginia.  Equitrans and the pipeline’s other owners hope to provide up to 2 billion cubic feet of gas to consumers in the mid-Atlantic and Southeastern states.  It is now scheduled for completion in the summer of 2022, four years behind the original schedule.

Opposition by environmental groups has been fierce. Some of the groups lined up in opposition include the Sierra Club, Save Monroe, West Virginia Rivers, The Indian Creek Watershed Association, Wild Virginia, the West Virginia Highlands Conservancy and the Wilderness Society. These groups and others have challenged the approval process by the U.S. Forest Service and the U.S. Fish and Wildlife Service for the pipeline’s plans to cross several sensitive wild areas and streams. The pipeline’s delayed completion is attributable to the legal victories won by these groups.  The U.S. Fourth Circuit Court of Appels has recently handed them two more.

On January 25, 2022 the Fourth Circuit invalidated the Forest Service’s permit for the pipeline to cross 3.5 miles of the Jefferson National Forest in Monroe County, West Virginia.  According to the unanimous 3-judge court panel, the Forest Service failed to consider sufficiently the sedimentation and erosion impacts of the pipeline’s stream crossings. It also failed to comply with a Forest Service rule governing forest plan amendments.

Then on February 3, 2022, another panel of Fourth Circuit judges declared that the Fish and Wildlife Service failed under the Endangered Species Act to evaluate adequately the environmental stressors the pipeline would create for two species of freshwater fish — the Roanoke logperch and the candy darter.  While the Fish and Wildlife Service was required to assess the cumulative effects of the pipeline on the species, the ruling criticized this analysis as occupying “less than a page” and said the biological opinion spends “one sentence discussing the impacts of climate change.”

The Court said: “We recognize that this decision will further delay the completion of an already mostly finished Pipeline, but the Endangered Species Act’s directive to federal agencies could not be clearer: halt and reverse the trend toward species, extinction, whatever the cost.'”

These legal victories will certainly delay, but will probably not prevent, the ultimate completion of the Pipeline.

Read more here, here and here.