Untangling the pipeline pileup in federal courts

By Ellen M. Gilmer | 07/31/2018 07:15 AM EDT

Federal judges are making their mark on natural gas pipelines.

The 4th U.S. Circuit Court of Appeals is in Richmond, Va.

The 4th U.S. Circuit Court of Appeals is in Richmond, Va. Acroterion/Wikipedia

Federal judges are making their mark on natural gas pipelines.

The past few months have featured a steady drumbeat of significant rulings, especially in the Mid-Atlantic region, from courts working their way through a stack of pipeline lawsuits that followed the industry’s push to build out shale gas infrastructure.

The issues are varied, encompassing landowner rights, Clean Water Act compliance, religious freedom, climate change and more. And the scorecard is mixed: Pipeline builders and the federal regulators who oversee their projects have triumphed over some challenges but faced remands and rebukes in others.


The pipeline projects are still chugging along but have been delayed in some places where federal permits have been tied up in court.

Here’s a rundown of some key recent rulings.

Mountain Valley: Eminent domain

One of the most ambitious recent pipeline challenges may have met its end in federal court last week. The 4th U.S. Circuit Court of Appeals dismissed a case from a group of Virginia and West Virginia landowners near the 303-mile Mountain Valley pipeline who say the Federal Energy Regulatory Commission’s eminent domain process for pipelines is unconstitutional.

The landowners had argued that FERC routinely violates the Fifth Amendment by allowing pipeline companies to exercise eminent domain to cross holdout properties. But the 4th Circuit sided with a lower court that said it lacked jurisdiction to consider the arguments because the landowners didn’t first go through FERC’s standard administrative process for pipeline challenges (Energywire, July 26).

The landowners could ask the 4th Circuit to reconsider its decision, but they haven’t yet decided if they will do so. Meanwhile, similar cases are pending in district courts in New Jersey and Washington, D.C. Those cases are targeting the PennEast, Atlantic Coast and Mountain Valley pipelines.

Mountain Valley: National forest crossing

Pipeline opponents were successful last week in a challenge to two federal approvals of the Mountain Valley pipeline. In another 4th Circuit case, a panel of judges ruled that the Forest Service and Bureau of Land Management didn’t fully comply with the National Environmental Policy Act and other laws when they signed off on the project’s crossing of the Jefferson National Forest in southern Virginia.

It was a big win for environmentalists, who have consistently argued that federal officials are greenlighting natural gas pipelines too quickly. The court scrapped the approvals and ordered the two agencies to take a closer look at potential impacts.

Environmentalists are calling on pipeline backer EQT Corp. to halt construction in the area in the meantime. The company has said it’s reviewing the order (Energywire, July 30).

Mountain Valley: West Virginia water crossings

In yet another 4th Circuit case affecting the Mountain Valley pipeline, the court in June granted environmentalists’ request to suspend the Army Corps of Engineers’ approval of water crossings in West Virginia.

Several groups had argued that the project’s river crossings were too complex to be covered by the general nationwide permit the Army Corps applied. The court agreed to stay the permit (Energywire, June 22).

The Army Corps has since revised its analysis and asked the 4th Circuit to lift the stay. Environmentalists oppose the request and have separately asked federal judges to extend the June decision by suspending the Army Corps’ approval of water crossings in Virginia. Both requests are pending.

Atlantic Coast: Endangered species

The Atlantic Coast pipeline, which runs 600 miles from West Virginia to North Carolina, ran into similar problems at the 4th Circuit when the court in May scrapped a key Endangered Species Act assessment.

The court ruled that the Fish and Wildlife Service fell short of the ESA when it issued an incidental take statement — an estimate of affected species — that didn’t set clear limits on how many ESA-protected animals could be affected (Energywire, May 16).

Atlantic Coast developers have vowed to avoid construction in the affected species’ habitat, but environmentalists want a court to issue an injunction.

Atlantic Sunrise: Religious freedom

Up in the 3rd U.S. Circuit Court of Appeals, another gas pipeline has been the subject of numerous legal challenges. But the Atlantic Sunrise pipeline, which includes almost 200 miles of new pipe in Pennsylvania and connects to a broader existing network, faced an unusual courtroom foe: a group of nuns.

The Adorers of the Blood of Christ argued that the Federal Energy Regulatory Commission’s approval of the pipeline’s route across their land violated their religious rights. Their faith prioritizes the protection of the environment, and the group’s lawyers argued that forcing the sisters to give up land for the pipeline amounted to a violation of the Religious Freedom Restoration Act.

The 3rd Circuit tossed the case last week, ruling that the group should have first raised its concerns with FERC rather than going straight to court (Energywire, July 26).

Upcoming decisions

Several other challenges to Mid-Atlantic pipelines are making their way through the federal court system.

In D.C. and New Jersey, for example, landowners and environmentalists are making their case against FERC’s eminent domain practices. The federal district court in New Jersey held a hearing last week on whether to dismiss that case, which involves the Pennsylvania-to-New Jersey PennEast pipeline. The D.C. case, which involves both Atlantic Coast and Mountain Valley, has been stalled for months.

Separately, several environmental groups are asking federal appellate courts to scrap FERC certificates for Atlantic Sunrise and Mountain Valley. A similar challenge to Atlantic Coast was dismissed as premature but is likely to be raised again when FERC issues a rehearing order in that case. Other pending lawsuits involve state permits and crossings of public lands.