Written by Chloe Marie – Research Specialist
The Mountain Valley Pipeline Project consists of a proposed 303-mile interstate pipeline system designed to transport natural gas from Wetzel County in northwestern West Virginia to Pittsylvania County in southern Virginia. This article is the second in a planned four-part series addressing legal issues and the regulatory process associated with the Mountain Valley Pipeline Project to date. On October 15, 2019, we posted an article reviewing the timeline of actions taken by various federal and state regulatory entities involved with the construction of the pipeline. This article and two planned subsequent articles will address legal challenges that have been filed opposing the Mountain Valley Pipeline Project. Where relevant, in these articles, we also will address additional administrative actions taken by governmental entities in response to the legal challenges.
Sierra Club v. West Virginia DEP, U.S. Court of Appeals for the 4th Circuit (No. 17-1714)
On June 9, 2017, Sierra Club and four other environmental groups filed a petition for judicial review with the U.S. Court of Appeals for the 4th Circuit challenging the Section 401 Water Quality Certification issued by West Virginia DEP on March 23, 2017 for the Mountain Valley Pipeline project. On September 13, 2017, West Virginia DEP voluntarily asked the court to vacate the water quality certification on judicial review and to remand the case. West Virginia DEP declared that “[a]mong the issues raised by Sierra Club is the requirement that certifications under Section 401 of the CWA examine compliance with all water quality standards, including a state’s antidegradation policy. In light of that requirement, WVDEP recognizes that it needs to reconsider its antidegradation analysis in the Section 401 Certification and commits to doing so as expeditiously as possible.”
As stated in our prior Shale Law in the Spotlight article, West Virginia DEP waived its authority under the Federal Clean Water Act to re-evaluate whether the Mountain Valley Pipeline Project violated the state’s water quality standards (see Shale Law in the Spotlight – Mountain Valley Pipeline Part 1).
Orus Berkley v. Mountain Valley Pipeline, LLC, U.S. District Court for the Western District of Virginia (No. 7:17-cv-00357); U.S. Court of Appeals for the 4th Circuit (No. 18-1042); U.S. Supreme Court (No. 18-561)
On July 27, 2017, a group of landowners residing along the pipeline route in Virginia brought a constitutional challenge against the Federal Energy Regulatory Commission (FERC) before the U.S. District Court for the Western District of Virginia over the exercise of eminent domain power. According to plaintiffs, FERC disregarded the Fifth Amendment of the U.S. Constitution in implementing “a series of sliding scale tests” to determine whether a project would be for a public purpose. The plaintiffs alleged that the implementation of this public purpose test, which has made it relatively easy to justify the taking of private properties, was unconstitutional.
Furthermore, plaintiffs alleged that the delegation of eminent domain powers to FERC by the Congress under the Natural Gas Act, 15 U.S.C. §717f(h) was “overly broad and unconstitutional” while also stating that “FERC has run wild in the years since, and has unconstitutionally sub-delegated the power of eminent domain to private parties seeking private profits.” As a result, plaintiffs considered that FERC’s delegation of the power of eminent domain to Mountain Valley Pipeline, LLC through a Certificate of Public Convenience and Necessity was thereby unconstitutional.
Plaintiffs also argued that Mountain Valley Pipeline, LLC has already engaged in unlawful takings in violation of Article I, §11 of the Virginia Constitution after the company surveyed and gathered valuable information and data from plaintiffs’ properties and FERC refused to release their content to plaintiffs. In its complaint, Plaintiffs note that “[t]he information gathered by [Mountain Valley Pipeline, LLC] through its surveying activities holds tangible and intangible value that forms just one part of the bundle of rights possessed by a fee simple owner of real property.”
In addition to the complaint, plaintiffs filed a motion for preliminary injunction to stop FERC from delegating its power of eminent domain to Mountain Valley Pipeline, LLC via a Certificate as well as to stop Mountain Valley Pipeline, LLC from entering landowners’ properties without their permission.
Mountain Valley Pipeline, LLC moved to dismiss the case on August 11, 2017, for lack of jurisdiction and failure to state a claim arguing that “plaintiffs have brought their challenges in the wrong court at the wrong time.” More specifically, the company argued that “[u]ntil a certificate is issued, a challenge to the project is not ripe, and the challenger lacks standing and has failed to exhaust administrative remedies.” Exactly four months later, the U.S. District Court agreed that it did not have jurisdiction over plaintiffs’ claims; therefore, denying their motion for a preliminary injunction as moot and granting Mountain Valley Pipeline, LLC’s motion to dismiss. Plaintiffs subsequently filed an appeal against that decision on January 9, 2018, with the U.S. Court of Appeals for the Fourth Circuit.
On July 25, 2018, the appellate court affirmed the U.S. District Court’s judgment that plaintiffs’ claims needed to be brought through an agency review process, as set out in the Natural Gas Act. Plaintiffs filed a Petition for Writ of Certiorari with the U.S. Supreme Court on October 24, 2018, seeking to appeal the Court of Appeals’ ruling. The U.S. Supreme Court refused to hear the petition for writ of certiorari on January 22, 2019.
Bold Alliance et al. v. FERC et al., U.S. District Court for the District of Columbia (No. 1:17-cv-01822); U.S. Court of Appeals for the District of Columbia Circuit (No. 18-5322)
On September 5, 2017, three community-based organizations, including Bold Alliance, Bold Educational Fund and Friends of Nelson County as well as a group of landowners filed a petition for declaratory and injunctive relief challenging FERC’s sub-delegation of eminent domain powers to natural gas pipeline companies.
In their amended complaint dated November 3, 2017, plaintiffs claimed, among other things, that “FERC does not inform potentially impacted landowners whose property will be taken by a pipeline through eminent domain that they must intervene to avoid waiving the right to challenge FERC’s grant of a certificate” and that “FERC grants not only [certificates of convenience and necessity] but also ‘conditioned certificates’ and ‘blanket certificates,’ which are not statutorily authorized and which give pipeline companies eminent-domain powers far beyond statutory and constitutional limits.” Thus, plaintiffs claimed that FERC has exceeded its authority under the Natural Gas Act and raised the constitutionality of FERC’s certificate program.
On December 21, 2017, FERC filed a motion to dismiss the amended complaint for lack of subject-matter jurisdiction arguing that the Court of Appeals has exclusive jurisdiction to rule on challenges to the FERC certificate process under the Natural Gas Act. In addition, FERC argued that plaintiffs have failed to exhaust all administrative remedies and that their claims are not ripe for immediate resolution. On September 28, 2018, the U.S. District Court ruled in favor of FERC and dismissed the case. Plaintiffs filed an appeal of this decision on October 26, 2018, with the U.S. Court of Appeals for the District of Columbia.
On December 3, 2018, both parties filed a joint motion to hold this appeal in abeyance pending resolution of the pending appeals of FERC’s final orders granting certificates for the Mountain Valley and Atlantic Coast pipelines. Subsequently, on December 17, 2018, Mountain Valley Pipeline, LLC moved to dismiss said appeal “because it is not objectively clear who among the individual landowners is an appellant.”
On February 15, 2019, the Court of Appeals granted the motion to hold in abeyance and indicated that both parties are “directed to file motions to govern further proceedings within 30 days of the disposition of No. 18-1216, Bold Alliance v. FERC, or No. 18-1313, Bold Alliance v. FERC, whichever occurs later.” Bold Alliance v. FERC, No. 18-1216 was later consolidated with Appalachian Voices et al. v. FERC under the docket No. 17-1271, and will be addressed in the fourth article of this Shale Law in the Spotlight series. Bold Alliance v. FERC, No. 18-1313 concerns the Atlantic Coast Pipeline and will not be addressed as part of this series.
Sierra Club v. U.S. Army Corps of Engineers, U.S. Court of Appeals for the Fourth Circuit (No. 18-1173)
On February 13, 2018, Sierra Club along with four other environmental groups petitioned the U.S. Court of Appeals for the Fourth Circuit for judicial review of the U.S. Army Corps of Engineers’ Nationwide Permit 12 Verification for the discharge of dredged and fill material into U.S. waters that was granted to Mountain Valley Pipeline, LLC on December 22, 2017. Ten days later, petitioners also filed a motion for preliminary relief to suspend the NWP 12 Verification pending judicial review “[b]ecause discharges under that authorization and the attendant stream-trenching that will occur are likely to cause irreparable harm to Sierra Club and its members before a ruling on the merits.” The Court of Appeals denied their motion on March 16, 2018.
On May 22, 2018, petitioners again filed a motion for preliminary relief, this time asking the Court of Appeals to stay the NWP 12 Verification pending judicial review because the crossings of the Gauley, Elk, Greenbrier, and Meadow River “cannot satisfy an express condition of [NWP 12] in West Virginia limiting the duration of crossing construction,” which is expected to be around 4 to 6 weeks.
On June 21, 2018, the Court of Appeals granted the stay of NWP 12 Verification pending resolution of the petition for review; however, respondents motioned the Court of Appeals on July 11, 2018 to lift the stay arguing that the Corps had already gone through a reconsideration process of NWP 12 and issued a reinstated verification on July 3, 2018; thus, rendering petitioners’ allegations in this regard moot. On August 29, 2018, the Court of Appeals agreed to lift the stay.
On October 2, 2018, the Court of Appeals vacated the Corps’ NWP 12 verification and reinstatement in their entirety. In a published opinion dated November 27, 2018, the court further explained that “absent completion of the notice-and-comment procedures required by the Clean Water Act, a state cannot waive a special condition previously imposed as part of its certification of a nationwide permit. Because West Virginia did not follow its federally mandated notice-and-comment procedures in waiving another special condition the state imposed as part of its certification of NWP 12, that condition remains a required—but, in this case, unsatisfied—condition of the nationwide permit.”
As stated in the first article in this series, this ruling follows decisions of the Huntington, Norfolk, and Pittsburgh Districts of the U.S. Army Corps of Engineers to suspend their NWP 12 verifications issued for the Mountain Valley Pipeline.
Sierra Club v. West Virginia DEP
Consent Motion for Voluntary Remand with Vacatur by Respondents West Virginia Department of Environmental Protection and Austin Caperton, Sierra Club v. West Virginia DEP, U.S. Court of Appeals for the 4th Circuit, No. 17-1714
Orus Berkley v. Mountain Valley Pipeline, LLC
Published Opinion, Orus Berkley v. Mountain Valley Pipeline, LLC, U.S. Court of Appeals for the Fourth Circuit, No. 18-1042
Petition for Writ of Certiorari, Orus Berkley v. Mountain Valley Pipeline, LLC, U.S. Supreme Court of the United States, No. 18-561
Bold Alliance et al. v. FERC et al.
Petition for Declaratory and Injunctive Relief, Bold Alliance et al. v. FERC et al., U.S. District Court for the District of Columbia, No. 1:17-cv-01822
Sierra Club v. U.S. Army Corps of Engineers
Petitioners’ Second Motion for Preliminary Relief, Sierra Club v. U.S. Army Corps of Engineers, U.S. Court of Appeals for the Fourth Circuit, No. 18-1173
Order, Sierra Club v. U.S. Army Corps of Engineers, U.S. Court of Appeals for the Fourth Circuit, No. 18-1173
Published Opinion, U.S. Army Corps of Engineers, U.S. Court of Appeals for the Fourth Circuit, No. 18-1173
Shale Law in the Spotlight – Mountain Valley Pipeline: Overview of Federal and State Regulatory Approval Processes (Part 1) (October 15, 2019)
This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.