LINDSIDE, W.Va. — Becky Crabtree dreamed of her daughter living next door when she purchased a tract of land in this rural community near the George Washington and Jefferson National Forests.
But those plans crumbled five years ago when Crabtree began battling the proposed Mountain Valley pipeline, a project Senate Energy and Natural Resources Chair Joe Manchin (D-W.Va.) is now attempting to help push through to completion. The pipeline bisects Crabtree’s sheep pasture in southern West Virginia and the area where her daughter and son-in-law’s house would have been built.
“They will not be living on top of a pipeline,” Crabtree said.
Designed to transport natural gas from West Virginia shale reserves to energy markets in mid-Atlantic states, the Mountain Valley pipeline has been mired in legal challenges since receiving approval from the Federal Energy Regulatory Commission (FERC) in 2017. Earlier this month, Manchin released a framework for Congress to mandate completion of the pipeline as part of a broader permitting reform package (Energywire, Aug. 2). A new summary of potential legislation would also help the pipeline, although it does not mention it specifically, The Washington Post reported yesterday.
To Manchin and other supporters of the 304-mile project, Mountain Valley exemplifies the nation’s inefficient and cumbersome permitting process, where pipelines and other critical energy projects are hindered by environmental opponents and permits revoked by the courts. But others who’ve followed Mountain Valley’s eight-year journey say it makes an argument for more robust environmental reviews for energy projects, not less strict ones, and showcases the delays that can occur when federal agencies cut corners.
“Is this really a good case to be throwing up your hands and saying this is a great example of why we can’t build energy infrastructure and need to streamline the process?” asked James Van Nostrand, a law professor at West Virginia University College of Law. “It’s more like the federal agencies are failing to comply with the law.”
Slated to cross hundreds of waterways, meander over mountains and pass through more than a thousand parcels of private land in West Virginia and Virginia, the project’s history may offer lessons for the pipeline industry and agencies that review large energy projects, observers say. In a slew of recent decisions, the 4th U.S. Circuit Court of Appeals tossed out approvals for the pipeline, which would also cross the Appalachian Trail and run through the Jefferson National Forest.
Project developers have said that the court’s process has been unfair, and Manchin’s office said the permitting deal would move outstanding litigation to a different court in Washington, D.C.
The notion of Congress driving the completion of Mountain Valley has left Crabtree and other landowners feeling sidelined by their representatives. While the fate of a permitting reform package remains uncertain, Manchin’s office maintains that Senate Majority Leader Chuck Schumer (D-N.Y.), House Speaker Nancy Pelosi (D-Calif.) and President Joe Biden agreed to advance the deal in exchange for Manchin’s support for the Inflation Reduction Act (Energywire, Aug. 2).
“We understand politics. We understand you give a little, you take a little,” said Crabtree, a high school science teacher who’s running as a Democrat for a seat in the West Virginia House of Delegates. “It doesn’t feel particularly good to be the sacrificial lamb for this particular deal.”
In Crabtree’s case, the pipeline route is located about one-tenth of a mile — or 530 feet — from her home. That’s within the so-called blast zone for the 42-inch pipe, meaning her home could be damaged in the event of an explosion nearby.
Mountain Valley acquired an easement on Crabtree’s land through eminent domain and began construction work in 2018, shortly after FERC approved the project. Since then, Crabtree’s primary concerns have been impacts to water quality and the surrounding ecosystem, as well as the long-term consequences of burning fossil fuels.
“We are certainly David and MVP is Goliath,” she said. “But I believe that every inch of their construction will be met with resistance in one form or another.”
Mountain Valley Pipeline LLC — a joint venture of energy companies led by Equitrans Midstream Corp. — says that the project has undergone a more thorough review than any existing gas pipeline in the country.
Crabtree acknowledged that many community members support the project, which has brought temporary construction and welding jobs to the area — a point relayed by Equitrans and project supporters. West Virginia Gov. Jim Justice (R); Virginia Gov. Glenn Youngkin (R); and local unions, including the West Virginia Laborers’ District Council that represents gas pipeline workers, are among the supporters.
“West Virginians have told us that they want to see the project completed, their properties restored, and the benefits of the project accrue for their communities,” Manchin, Sen. Shelley Moore Capito (R-W.Va.) and Rep. David McKinley (R-W.Va.) said in a letter to FERC last month.
One of the local backers is Jessie King, business manager of the West Virginia Laborers’ District Council. He said the pipeline has brought good-paying jobs for local workers, who also spend money on food and other needs in communities along the pipeline route.
“We’re in support of Sen. Manchin on this project, because this will help our members and workers throughout the state,” King said.
Underlying the Mountain Valley pipeline’s long and tenuous pursuit of state and federal permits are brewing concerns about the project’s effects on hundreds of waterways and wetlands and the fate of endangered fish in Appalachia.
While federal and state regulators have repeatedly signed off on the pipeline, courts have found that critical federal environmental reviews do not comply with bedrock environmental laws.
Front and center is the 4th Circuit in Richmond, Va., which earlier this year found the U.S. Fish and Wildlife Service’s environmental analysis of the pipeline conducted during the Trump administration violated protections for two endangered fish — the Roanoke logperch, only found in four river systems in Virginia and North Carolina, and the candy darter. The court remanded the analysis back to the agency, which is working to redo its review.
The candy darter is a brightly colored endangered freshwater fish endemic to Virginia and West Virginia that prefers shallow, fast-flowing streams with rocky bottoms and can die off if the places it needs for shelter and egg-laying are smothered by surges of mud and sediment (Energywire, Feb. 4).
“The candy darter lives in streams that are wild and beautiful,” said Tierra Curry, a senior scientist with the Center for Biological Diversity. “Safeguarding it means there are still places that we haven’t screwed up yet, and losing it means we are choosing fossil fuel-driven extinction over its well-being and ours.”
While it’s unclear when the Fish and Wildlife Service will submit a new biological opinion, the Army Corps of Engineers has agreed to wait for that review before issuing Mountain Valley developers a 404 permit under the Clean Water Act, which developers need to trench through streams and wetlands (Energywire, July 12, 2021).
In January, the 4th Circuit also vacated approvals from the Forest Service and Bureau of Land Management that would have allowed the pipeline to cross 3½ miles of the Jefferson National Forest (Energywire, Jan. 26). The agencies are now working together to address the decision, including by developing a new supplemental environmental impact statement, a Forest Service spokesperson said in an email.
Earlier this summer, Mountain Valley developers unsuccessfully pleaded for a slate of new judges on the 4th Circuit, as the same three judges are set to hear cases over the pipeline’s state water certifications in both Virginia and West Virginia. The panel consists of Chief Judge Roger Gregory, a George W. Bush and Clinton appointee, as well as Judges James Wynn and Stephanie Thacker, both Obama picks.
Mountain Valley argued in a court motion that allowing the same trio of judges, who had struck down other key permits, to hear the case challenging Virginia’s certification for the pipeline would create the perception that the legal process had been “rigged” against the project. Ultimately, the court declined to fulfill Mountain Valley’s request but offered no explanation for doing so (Energywire, June 23).
In the case concerning the Fish and Wildlife Service, Mountain Valley also argued that opponents had cherry-picked bits and pieces of the agency’s analysis, reaching “sweeping conclusions” that weren’t backed up by evidence.
The court rulings show the unique challenges around building such a large project through unforgiving terrain, said Evan Hansen, president of Downstream Strategies, an environmental and economic consulting firm that’s studied the Mountain Valley pipeline. Hansen is also a Democratic member of West Virginia’s House of Delegates.
“The fact that so many courts have overturned or delayed permitting decisions over the course of a number of years seems to bear that out,” said Hansen. “That this isn’t just a question of radical environmental groups slowing down an infrastructure project because it’s the courts that have slowed down the project.
“If their concerns weren’t valid, they would have been thrown out of court,” he said.
Christi Tezak, managing director at ClearView Energy Partners, said the pipeline’s challenges stem from opponents bringing more substantive criticisms to federal reviews — and, in the case of Mountain Valley, to non-FERC reviews — as well as courts finding that the agencies did not adequately respond to those criticisms.
“Environmental advocates and other pipeline opponents have moved away from voicing their objections in non-specific postcards to contributing competing analyses, etc.,” said Tezak in an email. “This has helped them improve their success rate in court if the agencies don’t do a good job responding to them.”
Sinkholes and streams
A lingering question for Mountain Valley is exactly how the project would cross the myriad water bodies and wetlands along the pipeline’s path.
According to the company’s filings with the corps, about 500 stream crossings have yet to be completed, of which approximately 70 percent will be open-cut and 30 percent will be bored under the streams or trenchless.
The impact of those remaining crossings is apparent across the project’s route, as pieces of pipe intended to eventually run across streams lay bare on some landowners’ properties. Potential water quality impacts are a concern for some landowners in rural communities that rely on private wells and springs for drinking water.
In some areas, much of the land also sits on karst topography that may be particularly prone to groundwater contamination, environmental advocates have argued.
Monroe County landowner Maury Johnson suspects that the blasting and construction that’s been done on his property to make way for the pipe has increased turbidity in his well water. Last year, he opted to turn off the pump for his well entirely because of the cloudy, sediment-filled water. Johnson said he now drinks bottled water.
“Since they came and blasted through the karst, I very often [had] turbidity in the well,” he said. “It started when they got here, and it wasn’t happening before they came in.”
Regarding Johnson’s concerns, Mountain Valley spokesperson Natalie Cox said the company has previously addressed them publicly and that the evidence in the record doesn’t back up his claims. Matthew Eggerding, assistant general counsel at Mountain Valley, told FERC in a comment last year that Johnson’s claims were “without merit.”
Prevalent along a 33-mile corridor extending from Summers County, W.Va., to Roanoke County, Va., karst terrain is characterized by prominent sinkholes, caverns and springs, with water-soluble underlying bedrock, according to Mountain Valley’s karst mitigation plan. The company has committed to hiring a karst specialist throughout the construction process and said that “numerous” bodies of water have already been crossed.
“Karst terrain is prevalent in the United States and accounts for approximately 40 percent of the area east of the Mississippi River, where several thousand miles of pipeline have been constructed and continue to operate safely,” Cox said in an email.
Some landowners still worry that burying the pipeline across mountaintops and under streams may make the land more unstable. Crabtree, the schoolteacher and landowner in Lindside, said that a 9.5-feet-deep and 4-feet-wide sinkhole opened up 62 feet from her front door “after they started blasting” for the pipeline.
According to Cox, Mountain Valley project representatives conducted an “extensive on-site investigation” of the sinkhole and determined that it likely formed from normal processes.
In her campaign for the House of Delegates, Crabtree says she is not making the pipeline a central part of her platform. Running as a Democrat in a conservative area, she said she wants to be a voice for all, including those in favor of the project.
“I want to represent everybody, but I also know there are some things I’m solid on,” she said. “My campaign supports clean air and clean water, and I defy anyone to argue with that.”
While at odds over the fate and impact of the pipeline, many environmental groups agree with Mountain Valley and FERC that the less invasive and more protective approach to water crossings is through the use of boring or trenchless crossings (Energywire, April 11).
Despite the support, Hansen of Downstream Strategies said there have been documented mishaps when the drilling fluid a company uses to bore under the bed of the creek or river escapes and ends up polluting the waterway.
“Like everything in life, there are trade-offs,” said Hansen.
‘A perfect storm’ for permitting issues
With some of the litigation on environmental and water issues is still outstanding, Equitrans and other backers of the project recently ran up against a different problem: running out of time to finish what they’ve started.
Earlier this year, Mountain Valley asked FERC for an additional four years to finish the pipeline (Energywire, June 27). This week, FERC granted Mountain Valley’s extension request in a unanimous decision, having found it was “reasonable” for the developers to need more time given the outstanding permits and the likelihood that future permits would undergo more reviews in the courts (Energywire, Aug. 24).
“Capacity for MVP remains fully subscribed under long-term, binding contracts, and the project is strongly supported by a broad coalition of elected federal, state and local officials; state chambers of commerce and other business groups; landowners; public utilities; natural gas producers; and other non-governmental organizations,” Cox, the Mountain Valley spokesperson, said in an emailed statement on FERC’s decision.
Nonetheless, an earlier decision issued by FERC in 2020 that gave Mountain Valley two more years to finish its work is being challenged in court. During oral argument for the case in April, judges on the U.S. Court of Appeals for the District of Columbia Circuit pressed FERC on why the commission didn’t extensively review the project’s “profoundly changed circumstances” (Energywire, April 8).
”There’s a perfect storm of issues that are all compiled within the Mountain Valley pipeline,” said Alison Gocke, an associate professor of law at the University of Virginia School of Law. “So all of the barriers that you think might occur are all compiled together in this one pipeline.”
Because of the number of permits that Mountain Valley requires, environmental and citizens groups have been able to fire off multiple challenges for the project, noted James Coleman, a professor of law at Southern Methodist University. Even though individual court rulings affecting Mountain Valley may have been reasonable or prudent, the cumulative impact is a “Kafkaesque” permitting process that clearly needs reform, Coleman said.
“For an outside observer, it’s almost amusing to see insult added to injury, where you’ve had these projects delayed by the court for years and years,” he said. “And then the court says, ‘Given these long delays, sorry, your time is up.’”
Critics of the pipeline, however, blame the delays at least partially on Mountain Valley itself.
“We would say that the length of time it has taken for MVP to get to here, which is still stalled, is not the fault of environmental groups or any other fault,” said Nancy Bouldin, a member of the community-based nonprofit Indian Creek Watershed Association in West Virginia’s Monroe County. “It was their own inadequate, faulty plan, and they never wanted to move off it.”
‘It’s starting to be more problems’
While most of the properties needed for pipeline construction were acquired through settlement agreements, close to 300 that had refused to settle were sued by the company after FERC greenlighted the project in 2017. Under the Natural Gas Act, pipeline companies can use eminent domain to acquire land once they receive a FERC permit, and the commission historically has approved nearly all of the gas pipeline projects that have come before it.
The news of Congress potentially mandating completion of the pipeline may only further inflame those living along Mountain Valley’s path, said Mia Yugo, an attorney at Yugo Collins PLLC in Roanoke who has represented some of the landowners.
“It unites people here who oppose the pipeline for different reasons, people who live rural and are conservative, it doesn’t matter,” Yugo said. “It’s an American issue, and you see that it seems like things are being changed to facilitate the operation of this pipeline.”
Still, some who’ve had their property acquired by Mountain Valley say that permitting issues and litigation have only made things worse.
Lynn Flora of Boones Mill, Va., said he settled with Mountain Valley when he learned of the developers’ intention to cross his land, because he felt that that project’s approval was inevitable. A third-generation cattle farmer, Flora has had to move his cattle off a section of his land that’s being used for the pipeline and cut down the size of his herd.
“My income is reduced 15 percent every year because I can’t have that volume,” Flora said.
Yet another problem: weeds. Mountain Valley has installed temporary seeding in the pipeline right of way that includes rye, wheat and millet, according to spokesperson Cox. But Flora said the right of way hasn’t been properly maintained to control noxious weeds, allowing johnsongrass and other nuisance plants to proliferate. Cox described the right of way as being “in a state of temporary stabilization.”
Despite his frustrations, Flora said he wishes Mountain Valley could finish what it has started so he can try to return his property to the way it was.
“It’s starting to be more problems, because the environmentalists have won out since ’18,” Flora said.
For Joyce Waugh, president and CEO of the Roanoke Regional Chamber of Commerce, the economic benefits would be substantial for the Roanoke area if the project does make it over the finish line. Businesses in the region — and those considering moving to the area — have expressed that more natural gas capacity from the pipeline would be helpful for their operations, she said.
“No one expected the project to take the length of time that it has, and that’s been a concern,” Waugh said.
Others are still hoping the project never gets finished.
Mike Williams, a landowner and cattle farmer in Newport, Va., said the pipeline has essentially cut his farm “in half.” The parcel of land has been in his family for six generations, he said.
“They’ve brought money into the community, shopping at stores and getting gas and buying stuff. A few jobs, I guess. But that’s for a little while,” Williams said. “If they ever do get it completed, they’re gone and gone to the next project.”
The right of way also crosses a water line that connects spring water to Williams’ home. If the water goes out because of a hole or other problem in the line, he has to give Mountain Valley representatives three days’ notice before going out to fix it because of the right of way, he said.
Cox said that the company needs to be notified in advance to ensure safety.
“Work on existing utilities in or near the Mountain Valley Pipeline, like all other underground pipelines, must be performed safely and with due diligence that involves appropriate notifications, including calling 811 in advance of digging activities,” she said in an email.
Manchin’s wish list
For now, Equitrans says that it’s made significant progress on the pipeline. Although community activists dispute the figure, Mountain Valley maintains on its website that total project work is “nearly 94% complete,” with 55.8 percent of the pipeline right of way “fully restored.”
In Manchin’s view, Mountain Valley is the only project of its kind that could boost the nation’s available supply of natural gas relatively quickly. If the project comes online, the U.S. could free up more natural gas to export to allies in Europe affected by the Russia-Ukraine war’s impacts on global energy markets, he has said.
Pipeline companies also are pushing for permitting reform, although many have not specifically backed Manchin’s proposal. John Stoody, vice president of government and public relations at the trade group Liquid Energy Pipeline Association, said this month that the permitting process is too vulnerable to “delaying tactics” from project opponents (Energywire, Aug. 19).
While Manchin’s centrist stance on many issues has afforded him some political sway over his party, the broader permitting reform package still isn’t a done deal.
Environmental groups are attempting to ramp up pressure among progressive Democrats to block the proposal. In addition to directing federal agencies to “take all necessary actions to permit the construction and operation” of the pipeline, the package would reportedly set new deadlines for federal environmental reviews broadly and establish “high-priority” infrastructure projects that could be fast-tracked for permitting, among other reforms (E&E Daily, Aug. 2).
Virginia’s congressional delegation is raising concerns with the possible provisions on Mountain Valley specifically.
Mia Fisher, a spokesperson for Sen. Tim Kaine (D-Va.), said in an emailed statement that a “flawed public engagement and permitting process” is part of what’s caused the project to be caught up in court challenges for years.
“Senator Kaine believes improving this process is preferable to having Members of Congress decide outcomes on individual energy infrastructure projects,” Fisher said.
Sen. Mark Warner (D-Va.) said prospective interstate natural gas pipelines should “abide by applicable federal and state laws and regulations and be safe for communities and the environment.”
“I will be reviewing the proposal as a whole once the full legislative text is available and monitoring further developments as they occur,” Warner said in an emailed statement shared by Valeria Rivadeneira, a spokesperson.
As Congress debates potential legislation that could affect Mountain Valley, at least some community members living along the pipeline route say they’re prepared to take their fight to the nation’s capital next month.
“[We’re] taking our growing movement to DC to demand decisionmakers stop MVP and all pro-fossil fuel legislation,” Russell Chisholm, co-chair of the anti-pipeline Protect Our Water, Heritage, Rights Coalition, said in a statement this week.