The 4th U.S. Circuit Court of Appeals Thursday halted some construction of the natural gas Mountain Valley Pipeline in West Virginia.
The three-judge panel sided with conservation groups who challenged the pipeline’s water-crossings permit issued by the U.S. Army Corps of Engineers.
Environmental groups, led by the Sierra Club, argued that construction of the 303-mile pipeline should be halted in the state, because the pipeline developer’s own documents showed they could not complete construction quickly enough to comply with the federal permit.
Clean Water Act Permitting
At the heart of the dispute is a federal Clean Water Act permit which allows the Mountain Valley Pipeline (MVP) to disrupt streams and wetlands during construction, while maintaining water quality standards.
The Army Corps of Engineers granted the MVP a Nationwide Permit 12, which covers all stream and wetland disruptions caused by utility line construction nationwide. It is one of about 50 broader so-called “general permits” that can be granted under Section 404 of the Clean Water Act.
A general permit does not require public notice and comment or environmental review.
A spokesperson for the Army Corps of Engineers said it could not comment on the decision to grant the MVP a general permit. They also said they could not comment on the court’s decision, because issues regarding ongoing litigation are handled by the Department of Justice. The Department of Justice did not respond to a request for comment.
Environmental groups praised the court’s decision. In a statement, Peter Anderson, program manager for Appalachian Voices Virginia, said the one size fits all permit does not make sense for natural gas pipeline construction. He said the MVP should be granted an individual permit under Section 404 of the Clean Water Act, which would allow for more public debate on the impact of the pipeline's construction on waterways.
"Putting the breaks on in-stream construction activity for the Mountain Valley Pipeline while the court performs its full review not only makes sense, it is also the only just outcome for communities directly impacted by this destructive project," he said. "MVP’s inability to cross rivers in compliance with the conditions of the permit is the most obvious - but certainly not the only - reason why blanket permits should not be used for projects of this size."
Two months after construction began, the MVP was cited by the West Virginia DEP for failing to control erosion at two work sites.
State regulators can add protections under the federal Clean Water Act Section 404 permitting scheme. In West Virginia, for example, the Department of Environmental Protection requires pipeline operators to finish a stream or wetland crossing in 72 hours.
In its petition to the court, environmental groups said MVP’s own planning documents showed river crossing for the Elk, Gauley, Greenbrier and Meadow rivers would take 4-6 weeks to complete. The federal appeals court agreed and stayed stream and wetland crossings.
In a statement released hours after the decision, Gov. Jim Justice said the administration was committed to the MVP.
"We will continue to monitor these proceedings closely to determine what role the state may play in expediting the construction of this pipeline," he said.
MVP spokeswoman Natalie Cox said in a statement they are disappointed with the temporary setback. She said the company is evaluating options to continue construction that does not involve stream and wetland crossings.
Cox said the pipeline, which is a joint venture between EQT Midstream, WGL Midstream, RGC Midstream, Con Edison Transmission and an affiliate of NextEra, intends to ask for a rehearing and intends to begin operations in late 2018.
Currently, the pipeline cannot engage in stream or wetland crossings until the 4th Circuit rules on the pending case. Oral arguments are scheduled for late September.