RICHMOND, Va. — A months-long battle over permits needed to build the Mountain Valley Pipeline finally came before a panel of federal judges Friday afternoon.
It was the first in a series of four back-to-back cases challenging various permits for the Atlantic Coast Pipeline and Mountain Valley Pipeline — two major projects being built to tap into the natural gas trapped inside the Marcellus Shale formation. For about four hours, Chief Judge Roger L. Gregory and Judges James A. Wynn, Jr. and Stephanie D. Thacker heard oral arguments in a nearly packed courtroom in Richmond.
At the center of the first debate was a Clean Water Act permit issued by the U.S. Army Corps of Engineers, called the Nationwide Permit 12, which environmental and citizen groups argue should have never been issued for the Mountain Valley Pipeline.
Questions about the permit have percolated since early 2017, when West Virginia issued a 401 certification, needed for the streamlined permit, but then opted to waive the certification in November when the permit was challenged by environmental and citizen groups.
At the time, West Virginia Department of Environmental Protection Secretary Austin Caperton said he felt “very comfortable that this pipeline can be installed in an environmentally sound manner and that the environmental impacts ultimately will be zero.”
Judges turned down a motion for a stay on that permit in March. They granted one in May, though, when lawyers filed a second motion for preliminary relief. They had found construction would take between four to six weeks — not 72 hours, like the DEP had stipulated. Challenged again, the state decided to waive that rule, opting for a supposedly more protective “dry-ditch” method, which would take longer.
On Friday, though, judges repeatedly asked why the Army Corps would allow the DEP to rewrite rules, and appeared surprised that construction has continued.
“Isn’t it a bait and switch?” Gregory asked.
David Gunter, a lawyer representing the Corps, called it a “Clean Water Act success story,” and argued that the dry-ditch method is more restrictive.
However, leaving streams exposed for more than 72 hours could still cause environmental harm, Derek Teaney, a lawyer for the environmental groups, said. But those aren’t the only two options, Teaney said. There are other ways to build a pipeline, like boring underneath the river.
The pipeline project should apply for an individual permit, Teaney argued. That would allow for public comments and more analysis.
And, the length of the process makes the project ineligible for the streamlined Nationwide 12 permit, he argued.
“If we agree with that, isn’t that the end of this?” Wynn asked, eliciting laughter from the courtroom.
“It looks pretty cool to me,” said Wynn, who later referred to the method as “like Moses” parting the Red Sea.
Judges also heard arguments that Mountain Valley Pipeline’s appraisal process only considered the value of the surface interest, and not the coal underneath on some properties.
They also heard a challenge to the Virginia Department of Environmental Quality’s permit for the Atlantic Coast Pipeline, as well as a case challenging the U.S. Forest Service’s approval to clearcutting and trenching through 21 miles of national forests, which reportedly could cause erosion, landslide risks and degrade streams.
In the last case, lawyers for a preservation group argued that the Forest Service had repeatedly warned Atlantic Coast Pipeline developers that the project might break environmental standards, but then changed course in 2017.
Gregory questioned whether the Forest Service is truly representing the country’s citizens and natural resources.
“Who’s running the train station?” he asked.
Earlier this week, Gregory, Wynn and Judge Pamela Harris heard arguments about the Mountain Valley Pipeline’s condemnation of land through eminent domain, prompting Gregory to question the concept of eminent domain, calling it a holdover of monarchy.
“When it comes to condemnation, condemnation is the death penalty, in terms of property. We talk about life, liberty and property,” he said.
The 300-mile-long Mountain Valley Pipeline would run from Wetzel County, West Virginia, into Pittsylvania County, Virginia. The Atlantic Coast Pipeline would run 600 miles from Eastern West Virginia into North Carolina. As the Mountain Valley Pipeline continues to face legal challenges and a temporary stop order from the Federal Energy Regulatory Commission over the summer, developers say that halt pushed completion into 2019 and caused the price of the project to climb to $4.6 billion.
Maury Johnson, who drove from Monroe County on Thursday to attend the hearings Friday, said the oral arguments demonstrated how regulators have repeatedly “bent over backward” to allow both projects to proceed.
“They haven’t done their jobs,” he said.
These arguments are not new. A review by the Charleston Gazette-Mail, in collaboration with ProPublica, earlier this year, showed federal and state agencies have often cleared hurdles to approve the pipelines.