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.
References:
Sierra Club
v. West Virginia DEP
Orus
Berkley v. Mountain Valley Pipeline, LLC
Bold
Alliance et al. v. FERC et al.
Sierra Club
v. U.S. Army Corps of Engineers
Additional Resources:
This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
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