Department of Environmental Protection Secretary Austin Caperton and his staff ignored serious threats to water quality when they approved a West Virginia permit for the Mountain Valley Pipeline, lawyers for environmental groups and citizen organizations say in a new legal brief filed this week.
DEP officials approved a water quality certification for the MVP project despite not having fully reviewed its potential to degrade streams, failing to consider the water pollution effects from construction in areas upland from streams and not responding to an avalanche of public comments questioning the pipeline, the groups say.
“Notwithstanding the clear and present threat to water quality from construction of the pipeline in the steep mountains of West Virginia, [the] WVDEP failed to adequately consider that threat,” wrote Derek Teaney, one of the Appalachian Mountain Advocates lawyers representing the Sierra Club, the West Virginia Rivers Coalition and other groups.
Tuesday evening, citizen group lawyers filed an 82-page brief arguing to outline their legal challenge of a Clean Water Act certification that Caperton issued to approve the MVP, a natural gas pipeline proposed to run more than 300 miles from the Marcellus Shale fields of Wetzel County, West Virginia, to Pittsylvania County, Virginia.
In West Virginia, the pipeline corridor is nearly 200 miles long and would require nearly 150 miles of access roads. Construction would require 631 stream crossings and 424 wetlands crossings. Construction involves a 125-foot-wide right of way. Operation requires a permanent 50-foot right of way. The pipeline would “disturb about 4,189 acres of soils that are classified as having the potential for severe water erosion,” the lawyers note. More than 150 miles of the pipeline’s route through West Virginia is “considered to have a high incidence of and high susceptibility to landslides.”
Caperton, a former coal executive and energy consultant, approved the pipeline permit, issuing a news release that pointed reporters to the developer’s website for “information about the potential economic benefit” of the pipeline. Caperton then turned down a request that he hold an administrative appeal hearing, announcing the move in a two-paragraph letter that did not explain any reason for the action.
The state permit in question is a certification under Section 401 of the Clean Water Act that the pipeline activity will not violate the state’s water quality standards or stream designated uses. Citizen groups have appealed Caperton’s actions to the 4th U.S. Circuit Court of Appeals, in Richmond, Virginia.
Among other things, the citizen groups note that DEP staffers received 2,400 pages of comments — and held public hearings that produced 150 pages of transcripts — but “issued a scant seven-page letter in response,” a reaction of such “surprising brevity” as to qualify as “arbitrary and capricious,” a legal standard for the court to overturn the state agency.
The citizen groups argue that the DEP’s review of the pipeline “myopically focused” on certifying the water quality compliance only of “dredge-and-fill” construction work that actually took place in streams and was covered by a U.S. Army Corps of Engineers permit. The DEP ignored other potential effects of polluted runoff from the pipeline right of way during construction and operation, failing to also certify as water-quality compliant a separate federal certificate that MVP is seeking from the Federal Energy Regulatory Commission.
The DEP also certified the pipeline despite agency records “replete with evidence that industry-standard erosion and sediment control practices [for pipeline construction] had failed spectacularly in the Appalachian region in recent history,” the citizen group lawyers told the 4th Circuit.
Lawyers for the DEP are to respond to the citizen group filing by Sept. 14, and the pipeline developers, who intervened in the case, have asked for a deadline of Oct. 5. The 4th Circuit has not yet set a date for an oral argument.
The MVP project also faces a lawsuit in U.S. District Court in Roanoke, Virginia, that seeks to block FERC from issuing a federal permit that would give pipeline developers the ability to use eminent domain to condemn property for construction.
Recent confirmation actions by the U.S. Senate filled two vacant FERC seats, giving the commission a quorum to consider issues like the MVP permit. Still, FERC lawyers asked for and received an additional two weeks, until Sept. 14, to file a response in that case. Lawyers for MVP have filed a motion seeking to have that case thrown out.