The 4th U.S. Circuit Court of Appeals issued an opinion Tuesday explaining a stay of construction of the Mountain Valley Pipeline across about 1,000 waterbodies in West Virginia and Virginia that it granted last month, stating the U.S. Army Corps of Engineers’ approval of water permitting for the project was likely illegal.
The court’s Nov. 9 stay will remain in effect until it decides whether to overturn water permitting from the U.S. Army Corps of Engineers for the project, designed to be a 303-mile natural gas pipeline system traveling from Northwestern West Virginia to Southern Virginia crossing Wetzel, Harrison, Doddridge, Lewis, Braxton, Webster, Nicholas, Greenbrier, Fayette, Summers and Monroe counties in the Mountain State.
Environmental groups, including the Sierra Club, the West Virginia Rivers Coalition and the West Virginia Highlands Conservancy, challenged the corps’ September re-issuance of Nationwide Permit 12 approval.
The 4th Circuit had, in 2018, vacated a previous version of the NWP 12 verification issued by the Corps of Engineers’ Huntington District the previous year.
But the court said the environmental groups were unlikely to succeed in their challenges of the corps issuance of the 2017 NWP 12 because it probably lacks jurisdiction to consider the challenge.
Under NWP 12, projects do not need separate permits for individual waterbodies. By operating under that federal permit, the MVP would not have to go through the more time-consuming process of obtaining individual permits for specific projects under the Clean Water Act.
In its opinion, the court highlighted what it viewed as the West Virginia Department of Environmental Protection’s lack of authority to walk back a water permitting condition it adopted.
The DEP imposed a special condition as part of its 2017 certification of NWP 12 stipulating that individual state water quality certification is required for pipelines equal to or greater than 36 inches in diameter or pipelines that cross a river regulated by the federal Rivers and Harbors Act of 1899. The MVP is greater than 36 inches in diameter and is designed to run through three such rivers: the Elk, the Gauley and the Greenbrier.
The DEP later purported to waive its requirement that the pipeline obtain an individual water quality certification, but the court ruled the DEP had to engage in proper notice and comment procedures before it could waive the requirement and vacated the Huntington District verification for that reason.
In 2019, the DEP revised the special condition to require individual water quality certifications for pipelines greater than 36 inches in diameter or crossing a river regulated by the Rivers and Harbors Act of 1899 only if the DEP secretary believes the requirement should be in place.
Earlier this year, the DEP stated it would not require an individual water quality certification for the MVP and requested the corps incorporate the modification into its NWPs for West Virginia, which resulted in the Huntington District issuing its verification in September.
The court concluded the environmental groups “have made a strong showing they are likely to succeed on the merits of the argument that the corps engineer lacks authority to incorporate the modified special condition into NWP 12,” stating, in part, that the DEP lacked the authority to make subsequent modifications to the special condition.
“For these reasons, we conclude the Verification was likely issued in contravention of applicable law,” the court wrote.
The environmental groups also argued that because the Army Corps failed to consult the U.S. Fish and Wildlife Service before reissuing NWP 12 in 2017, that reissuance violated the Endangered Species Act, rendering the NWP 12 and corps verification invalid.
But the court said that is probably an unsuccessful stance because the court likely lacks jurisdiction to consider it.
Still, environmental challengers welcomed the opinion.
“The court’s opinion affirms that the DEP’s repeated attempts to ‘walk back’ environmental protection are ineffective — not to mention irresponsible,” West Virginia Rivers Coalition Executive Director Angie Rosser said in a statement. “This combination of agency sloppiness and bending of laws to accommodate the pipeline sets too low of a standard. We want to make sure that all procedures are followed and all protections are afforded, especially when it comes to a massive pipeline that stands to impact so many of our streams and rivers.”
“We were glad to see the court affirm what common sense already tells us; that West Virginia cannot bend over backwards to help the dirty, dangerous Mountain Valley fracked gas pipeline get out of a mess of their own making,” Sierra Club Senior Attorney Nathan Matthews said in a statement. “If the West Virginia Department of Environmental Protection actually cared about the environment or protecting it, they would make these polluting corporations play by the rules, not unlawfully go back and change them once MVP started losing.”
Natalie Cox, spokesperson for MVP developer Equitrans Midstream Corporation, said Tuesday that Equitrans was “completing an in-depth review” of the court’s opinion and that crews are continuing with construction work outside waterbodies.
Terry Fletcher, DEP acting communications director, declined comment on the court’s opinion.