Two multibillion-dollar natural gas pipelines hit legal snags on Friday, as the Atlantic Coast Pipeline voluntarily suspended planned crossings of rivers in West Virginia and a federal appeals court rescinded federal permits that allowed construction of the Mountain Valley Pipeline across national forest land in Virginia.
The Atlantic Coast Pipeline, a 600-mile project crossing parts of three states, informed the 4th U.S. Circuit Court of Appeals on Friday that it had requested and received an administrative stay on construction of the project across all West Virginia rivers. The action allows further review by the U.S. Corps of Engineers of the project’s plans to meet state requirements for three contested river crossings.
The Corps’ office in Huntington, W.Va., granted the temporary stay on Friday, just three days after Dominion Energy and its partners received federal permission to begin construction of the portion of the $5.5 billion pipeline that would cross North Carolina.
The 4th Circuit, which had stayed construction of the 303-mile Mountain Valley Pipeline across West Virginia rivers last month, dealt the project another blow on Friday by vacating federal permits allowing the pipeline to cross 3.6 miles of the Jefferson National Forest in Virginia.
The unanimous ruling by a three-judge panel of the Richmond-based appeals court cancels permits issued by the Bureau of Land Management and the U.S. Forest Service allowing the Mountain Valley Pipeline to cut through the Jefferson National Forest.
The judges’ ruling accuses the agencies of ignoring environmental regulations in approving the project.
“MVP’s proposed project would be the largest pipeline of its kind to cross the Jefferson National Forest. American citizens understandably place their trust in the Forest Service to protect and preserve this country’s forests, and they deserve more than silent acquiescence to a pipeline company’s justification for upending large swaths of national forestlands,” wrote Judge Stephanie Thacker, an appointee of President Barack Obama.
Chief Judge Roger Gregory, initially nominated by President Bill Clinton and renominated by President George W. Bush, and William Traxler, a Clinton appointee, joined in the opinion.
“Today’s decision is great news for Virginians and everyone who cares about clean water and pristine forests,” said Nathan Matthews, staff attorney for the Sierra Club, which had filed the suit against the Forest Service and Mountain Valley Pipeline.
“We have said all along that we can’t trust Mountain Valley Pipeline to protect Virginia’s water, so it’s refreshing to see the court refuse to take them at their word,” Matthews said.
Mountain Valley spokeswoman Natalie Cox said the ruling affects only about 1 percent of the project route, and emphasized that the court did not accept all of the arguments the environmental groups put forth. Cox said the pipeline company is working with the federal agencies “to evaluate the effect of the order on construction activities in the National Forest.”
The 4th Circuit has become a major battlefield over construction of the two pipelines, which environmental groups and other opponents challenged on multiple fronts, in court and before Virginia’s water quality regulators.
The Atlantic Coast Pipeline’s decision to seek a temporary stay of plans to cross more than 150 West Virginia streams and rivers stemmed from an appeals court ruling that found the Mountain Valley Pipeline in violation of a regulatory requirement in that state that requires them to complete the crossings within 72 hours.
The Sierra Club, which won the stay against Mountain Valley, requested the same relief from the appeals court on the Atlantic Coast project a week ago.
“We are glad to see the Corps has suspended ACP’s permits, and we hope that the temporary stoppage of construction in these waterways becomes permanent,” said Aaron Isherwood, a managing attorney for the Sierra Club.
Dominion spokesman Aaron Ruby said the company has submitted plans for complying with the requirement and sought the stay to allow the Corps time to review them.
“Allowing this additional time for review is in the best interest of the environment and West Virginia’s natural resources,” Ruby said in a statement that emphasized the ruling would not affect other construction activities planned in West Virginia and North Carolina.
Construction of the pipeline in Virginia cannot proceed until regulators issue a final permit to assure that the project meets requirements for erosion and sediment control, which also is a major issue in the Forest Service decision the 4th Circuit issued on the Mountain Valley project.
The State Water Control Board also plans a hearing on Aug. 21 on whether to reconsider Virginia’s decision last year to rely on the Army Corps to regulate pipeline crossings of Virginia water bodies.
David Sligh, conservation director of Wild Virginia, said the 4th Circuit’s decision to vacate the Forest Service permit for the Mountain Valley project is based in part on concerns about erosion and sediment control where the pipeline would cross water bodies in the Jefferson National Forest.
“The state of Virginia must now act to reverse its negligent decisions and fully protect our state waters,” Sligh said. “Specifically, the court’s holding that agencies failed to make valid findings on the threats from erosion and sediment discharges is just as valid for DEQ’s assessments.”
He also said the court’s decision addresses some of the same concerns raised in a lawsuit by the Southern Environmental Law Center against the Forest Service over its permit to allow the Atlantic Coast Pipeline to cross 21 miles of the George Washington and Monongahela national forests in Virginia and West Virginia, respectively.
“Citizens raised the same issues for ACP as those that the court found convincing for MVP,” Sligh said. “We believe the Forest Service’s failures on MVP are just as valid for ACP.”
Patrick Hunter, an attorney for the Southern Environmental Law Center in Asheville, N.C., said Friday that the court’s decision is not directly applicable to the lawsuit against the Forest Service in the Atlantic Coast project, which he expects the 4th Circuit to hear in September.
However, Hunter said the two legal challenges address some overlapping issues, such as how the agency amended its plans for management of the affected forest lands and addressed concerns about protecting water bodies from erosion and sedimentation.
Dominion declined to address the 4th Circuit decision on the Forest Service permit for the Mountain Valley project.
The company emphasized the importance of the Federal Energy Regulatory Commission’s decision on Tuesday to approve construction of the pipeline in North Carolina.
“This week’s approval is another major step forward for the project,” Ruby said.
However, Hunter said the law center, based in Charlottesville, has asked the 4th Circuit for an injunction to stop construction on the entire pipeline route because of the court’s decision in May to vacate a permit by the U.S. Fish & Wildlife Service. The agency had found project effects on endangered or threatened species to be “incidental takings” rather than existential threats under the Endangered Species Act.
Dominion has said the ruling would affect 79 miles of the pipeline project in Virginia and 21 miles in West Virginia, but the law center contends it applies to the entire route.
“We think that the construction needs to stop until they figure out whether they can fix the problem,” Hunter said.