4th Circuit freezes key Mountain Valley pipeline approval

By Niina H. Farah | 11/10/2020 07:18 AM EST

Construction on the Mountain Valley pipeline project in West Virginia is shown.

Construction on the Mountain Valley pipeline project in West Virginia is shown. Mountain Valley Pipeline LLC

The 4th U.S. Circuit Court of Appeals agreed yesterday to pause developers’ use of a streamlined water permit for the Mountain Valley pipeline, dealing another setback for a multibillion-dollar project beset by years of delays and cost overruns.

Hours after a virtual hearing on environmental groups’ motion to scrap reissued approvals for the natural gas pipeline under the Army Corps of Engineers’ Nationwide Permit 12 (NWP 12) program, a three-judge panel agreed to stay the permits.

The judges did not immediately explain their reasoning for the decision, noting that an opinion would follow at a later date.


The order follows an administrative stay that temporarily blocked the water crossing permit as the court considered the latest stay request.

It also comes as environmental groups are separately challenging the Fish and Wildlife Service’s biological opinion and incidental take statement for the nearly $6 billion pipeline.

The stay won’t halt work on the project, and construction will continue in upland areas of the pipeline’s route. There is also ongoing work to maintain erosion controls and complete restoration along parts of the right of way, said Natalie Cox, a spokesperson for developer EQM Midstream Partners LP.

The company had announced last week that it was pushing back its date of operation until the second half of 2021, citing the ongoing litigation (Energywire, Nov. 5).

"While we are disappointed with the outcome of today’s decision, we are hopeful and expect that once the case is reviewed on the merits of the arguments there will be a different conclusion," Cox wrote in an email.

Wild Virginia, one of the environmental groups calling for the stay, lauded the decision as a "big win."

"The judges clearly understand that these sensitive places can be degraded and destroyed all too easily and that the health of our precious resources is more pressing than the fullness of the corporation’s pocketbook," David Sligh, Wild Virginia’s conservation director, said in a statement.

He noted that it was only a temporary victory.

"We will continue to push to make it permanent and end this travesty once and for all," Sligh wrote.

Wild Virginia and other challengers had argued the court should block the permits to prevent the pipeline’s developers from quickly finishing construction of the project in West Virginia and Virginia before the judges could rule on the case.

They emphasized the urgency of keeping the 300-mile project from moving forward.

EQM Midstream had argued that work relating to stream crossings would be nearly completed by March 2021. But it is "highly unlikely" the case would be argued and decided by that point, said Derek Teaney, deputy director of Appalachian Mountain Advocates.

"Absent a stay there is no effective relief available," he told the panel.

Teaney noted that the pipeline developers had had ample warning about the need to instead complete an individualized water permit for the project, rather than rely on the more general NWP 12 approval.

The environmental groups had maintained that the court could review the "defective" basis for reissuing the project approvals, which were based on a permitting program that had violated the Endangered Species Act when it was reauthorized in 2017.

The permits were also issued based on modifications to compliance standards approved by an Army Corps division engineer who didn’t have the authority to make the changes, the challengers said.

Both the Army Corps and the pipeline developer had sought to make the case that the environmental groups lacked jurisdiction to bring the case to an appellate court.

Continuing to block the pipeline was costing developers $20 million per month on erosion prevention, said George Sibley, a Hunton Andrews Kurth LLP attorney representing the pipeline company.

The Army Corps defended the legality of the streamlined permitting program.

"The nationwide permit has no effect on listed species; it doesn’t authorize any project that affects endangered species," said Kevin McArdle, a Justice Department attorney representing the agency.

The Army Corps does not comment on pending litigation.