Friday, October 18, 2019

Shale Law in the Spotlight – Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction (Part 4)


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 fourth in a 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. On October 16, 2019, and October 17, 2019, we posted a second article and third article addressing legal challenges that have been filed opposing the Mountain Valley Pipeline Project as well as related administrative actions taken by governmental entities in response to the legal challenges. In this article, we will continue to discuss pending litigation.  

In Sierra Club v. U.S. Forest Service, 4th Cir. Court, No. 17-2399 and Wilderness Society v. U.S. Forest Service, 4th Cir. Court, No. 18-1012, several environmental groups petitioned the U.S. Court of Appeals for the Fourth Circuit in December 2017 seeking judicial review of the Jefferson National Forest Land and Resource Management Plan dated December 1, 2017, which was specifically amended to accommodate a right-of-way granted by BLM. The Court of Appeals ordered the consolidation of these two cases on January 5, 2018, with case no. 17-2399 as the lead case.

In Sierra Club, Inc. v. U.S. Dept. of the Interior, 4th Cir. Court, No. 18-1019 and Wilderness Society v. U.S. Dept. of the Interior, 4th Cir. Court, No. 18-1036, the same environmental groups again petitioned the U.S. Court of Appeals for the Fourth Circuit in January 2018, but this time to review BLM’s right-of-way grant and associated temporary use permits that were issued on December 28, 2017, authorizing the use of federal lands for the Mountain Valley Pipeline Project, including the Jefferson National Forest as well as the Weston and Gauley Bridge Turnpike Trail. On February 20, 2018, Court of Appeals consolidated both cases with case no. 17-2399.

All petitioners claimed that both the U.S. Forest Service and BLM’s decisions violated the National Environmental Policy Act (NEPA), the Mineral Leasing Act (MLA), and the National Forest Management Act (NFMA).

On July 27, 2018, the U.S. Court of Appeals for the Fourth Circuit issued an order vacating the U.S. Forest Service’s amended Land and Resource Management Plan contending that the Forest Service’s decision “fail[ed] to comply with NEPA and the NFMA.”

In a published opinion, the Court of Appeals reasoned that the Forest Service violated NEPA in that it “acted arbitrarily and capriciously in adopting the sedimentation analysis” as part of the Environmental Impact Statement issued in June 2017 and that it failed to consider the impact on the forests when looking for alternative routes and plans. In addition, the court asserted that the U.S. Forest Service “admittedly needed to change the Forest plan because the [Mountain Valley Pipeline] project could not meet its requirements otherwise.” It further added that “the clear purpose of the amendment [was] to lessen requirements protecting soil and riparian resources so that the pipeline project could meet those requirements;” thus, violating the NFMA. The Court of Appeals remanded the Revised Forest Plan to the U.S. Forest Service for reconsideration.

The Court of Appeals also vacated BLM’s decision to grant a right of way through federal lands and remanded for consideration of the MLA’s preference for utilizing existing rights-of-way. The court considered that the agency failed to make a practical finding on whether it should have utilized existing rights-of way as alternatives to new ones.

On October 10, 2018, the Court of Appeals granted rehearing of the case only “for the limited purpose of clarifying” that the July 27, 2018, opinion and order to vacate did not apply to BLM’s Record of Decision authorizing a right-of-way and temporary use permits for the Mountain Valley Pipeline project to cross the Weston and Gauley Bridge Turnpike Trail.

Sierra Club v. State Water Control Board, U.S. Court of Appeals for the Fourth Circuit, No. 17-2406

Sierra Club and three other environmental groups petitioned the U.S. Court of Appeals for the Fourth Circuit on December 8, 2017, seeking a judicial review of Virginia’s Clean Water Act Section 401 certification that was issued on December 8, 2017, by the Virginia State Water Control Board.

Petitioners first argued that the state Department of Environmental Quality (DEQ) “segmented its review of the Pipeline into separate reviews of the impacts associated with waterbody crossings and impacts associated with upland activities and failed to consider the combined effects of those two separate classes of impacts.” They further added that “DEQ arbitrarily relied on general, non-project specific mitigation measures included in [Mountain Valley]’s Annual Standards and Specifications to conclude that the Pipeline would have no impact on water quality such that a detailed antidegradation analysis was not required.” And finally, petitioners claimed that “DEQ’s deferral of the development and assessment of [Mountain Valley]’s project-specific stormwater and erosion and sediment control plans prevented the Board from making a reasoned decision that the Pipeline would not violate water quality standard.”

On August 1, 2018, the U.S. Court of Appeals for the Fourth Circuit issued an order denying the petition for review concluding that both Virginia DEQ and State Water Control Board did not act “arbitrarily and capriciously” when issuing Section 401 Water Quality Certification. The court declared that it saw “no purpose [that would be served] by stepping in and second-guessing the analytical methods Virginia deemed appropriate to provide it with reasonable assurance that its water quality would be protected.”

Appalachian Voices et al. v. FERC, U.S. Court of Appeals for the District of Columbia Circuit, No. 17-1271

On December 22, 2017, five environmental groups, including Appalachian Voices, filed a petition for judicial review before the U.S. Court of Appeals for the District of Columbia Circuit challenging FERC’s Certificate Order dated October 13, 2017, that allowed construction and operation of the Mountain Valley Pipeline Project.

On February 19, 2019, the court denied review of FERC’s Certificate Order finding, among other things, that FERC’s conclusion that the Mountain Valley Pipeline Project will serve the public interest was “reasoned and supported by substantial evidence in the record.” Moreover, the court clarified that FERC’s issuance of a certificate was not tied to BLM and Forest Service’s respective decisions to grant Mountain Valley a right of way through federal land and amend Jefferson National Forest Land Resource Management Plan to accommodate such right of way; thus, the recent court decision vacating both decisions had “no bearing on the validity” of FERC’s Certificate order.

Wild Virginia, Inc. v. U.S. Dept. of the Interior, U.S. Court of Appeals for the Fourth Circuit, No. 19-1866

On August 12, 2019, a group of environmental organizations jointly petitioned the U.S. Court of Appeals for the Fourth Circuit seeking judicial review of the U.S. Fish and Wildlife Service (FWS) Biological Opinion (BiOp) and Incidental Take Statement (ITS) issued for the Mountain Valley Pipeline on November 21, 2017. A few days later, Mountain Valley decided to suspend voluntarily some of its construction activities after considering that these activities would pose a risk of take based on the FWS’s BiOp.

Consequently, petitioners filed a motion for stay pending appeal on August 21, 2019, of the FWS’s BiOp and ITS alleging that the FWS failed to consider certain aspects in their analysis that would significantly affect several threatened and endangered species, including the Indiana and Northern long-eared bat species and Roanoke Logperch. In their arguments before the Court, petitioners advanced that FWS arbitrarily allowed Mountain Valley to take “a small percent” of the bat species “within set geographic areas,” while precedent of this court already ruled that “a small percent” was not an enforceable limit on the take of threatened and endangered species. In addition, petitioners alleged that FWS simply did not address the impacts of clearing suitable unoccupied summer habitat on the Indiana bat as well as the impacts of the pipeline construction on Indiana bat recovery and the Roanoke Logperch species.

Petitioners also emphasized that this court “should not decline to stay an invalid FWS authorization, on which other agency authorizations depend, due to a voluntary suspension of limited scope that depends on the very BiOp in dispute to define which activities pose a risk to endangered species … Meanwhile, Mountain Valley is rushing to deliver pipe to the right-of-way as active construction continues even in areas covered by the suspension.”

Consequent to the motion for stay, FERC asked Mountain Valley on August 28, 2019, to revise its BiOp, in light of new information received regarding the impacts of the project on the candy darter, Roanoke logperch, Indiana bat, and Northern long-eared bat species.

On October 11, 2019, the U.S. Court of Appeals granted the motion for stay pending appeal.

References:

Sierra Club v. U.S. Forest Service



Appalachian Voices et al. v. FERC


Wild Virginia, Inc. v. U.S. Dept. of the Interior




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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