The Mountain Valley Pipeline’s legal limbo continued Monday as a panel of federal judges granted a stay of construction of the pipeline across about 1,000 waterbodies in West Virginia and Virginia.
The 4th U.S. Circuit Court of Appeals granted the stay following oral arguments as it considered whether to grant a previous request by conservation groups for a longer stay barring construction of the pipeline across streams in West Virginia and Virginia.
The court had granted a temporary administrative stay on Oct. 16, and its Monday stay, via a brief order without explanation, will remain in effect until it decides whether to overturn water permitting from the U.S. Army Corps of Engineers for the project.
Environmental groups, including the Sierra Club, the West Virginia Rivers Coalition and the West Virginia Highlands Conservancy, challenged the corps’ September reissuance of Nationwide Permit 12 approval. The 4th Circuit had, in 2018, vacated the Nationwide Permit No. 12 issued by the Huntington District of the corps the previous year.
During Monday’s oral arguments, the court questioned whether it had the authority to consider aspects of the case concerning the pipeline, which is 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.
Derek Teaney of Appalachian Mountain Advocates, counsel for the environmental groups petitioning for a stay, argued that the court does have jurisdiction and that the Nationwide Permit 12 required to cross streams as reissued by the Corps of Engineers is unlawful.
Under Nationwide Permit No. 12, projects do not need separate permits for individual waterbodies.
“It’s right to press pause to allow the court to fully review water-crossing permits impacting over 1,000 streams and wetlands,” said Angie Rosser, executive director of the West Virginia Rivers Coalition. “Concerns raised about the legality of permits, coupled with MVP’s poor track record, warrant taking time to make sure mistakes aren’t made that will be regretted later.”
Prior to Monday’s oral arguments, George Sibley III, counsel for Mountain Valley Pipeline LLC, said in a court filing that the temporary administrative stay already delayed the project’s completion, causing “unrecoverable and irreparable harm” of $60 million. Sibley added that Mountain Valley will continue to incur an extra $20 million per month to maintain temporary erosion-control devices during any stay. The project has already cost $4.7 billion, Sibley reported.
In an earnings call with security analysts last week, Diana M. Charletta, president and COO of Canonsburg, Pennsylvania-based Equitrans Midstream Corp., said the in-service date that Equitrans is targeting was pushed back to the second half of 2021 and that the cost estimate had risen to at least $5.8 billion, citing continued legal and regulatory challenges.
The project initially was forecast to launch in the fourth quarter of 2018, and it’s now projected to cost more than 50% more than its original price tag.
“While we are disappointed with the setbacks that have led to cost increases and delays, we remain steadfast that MVP will reach completion and, more importantly, that the value of this critical infrastructure project will be realized,” Charletta said.
4th Circuit Judge Stephanie D. Thacker asked Sibley why Charletta said in an August earnings call that Equitrans would move forward with stream-crossing construction “as quickly as possible before anything is challenged.”
“It was a recognition that our opponents are implacable,” Sibley said. “They will challenge anything that we do.”
Sibley noted that Mountain Valley has complied with court orders regarding construction amid the legal battle over the pipeline, which Equitrans expects to have a 47.6% ownership interest in.
Charletta said in last week’s earnings call that, if a Nationwide 12 permit is disallowed for the project, Equitrans could ask the Federal Energy Regulatory Commission for boring approval or seek individual permitting.
Teaney argued that Mountain Valley’s financial hit has been self-inflicted and that it should have sought individual permitting when a 4th Circuit judge suggested doing so in 2018.
Mountain Valley Pipeline LLC is a joint venture between EQM Partners LP; NextEra Capital Holdings Inc.; Con Edison Transmission Inc.; WGL Midstream; and RGC Midstream LLC. The company has projected that the pipeline will provide up to 2 billion cubic feet per day of natural gas from the Marcellus and Utica shale formations.
Mountain Valley applied to the FERC to approve, construct and own the pipeline in October 2015. Construction began on the pipeline in February 2018.
Mountain Valley Pipeline, in June, said total project work was about 92% complete, but the FERC estimated in its Oct. 9 order that about 16% of the pipeline has not been installed. Environmental groups have questioned whether Mountain Valley Pipeline has accurately reported how much of the project is complete, suggesting that MVP has overestimated completion percentages to make regulatory approval easier and satisfy investors.
“Communities along the pipeline route have been on edge these past several weeks as the company has moved in heavy equipment and started doing work, so we’re very glad the court pressed pause on this permit while the water-crossing issues are reviewed further,” Peter Anderson, Virginia program manager for the North Carolina-based environmental advocacy group Appalachian Voices, said in a statement.
Last month, the FERC lifted a stop-work order for the pipeline, although it did not allow construction to resume in a 25-mile area encompassing two watersheds containing 3.5 miles of pipeline right-of-way that crosses the Jefferson National Forest.