Environmentalists seek to hold off Mountain Valley Pipeline work in national forest

Environmental groups have asked the US Court of Appeals for the 4th Circuit to stay the recent authorization for the 304-mile, 2 Bcf/d Mountain Valley Pipeline to cross the Jefferson National Forest.

The pitch is the latest effort by environmentalists to hold off work on the natural gas pipeline in the 4th Circuit, even as the developer and the US government assert the court was already stripped of its jurisdiction over Mountain Valley permits by a provision in the federal debt ceiling law greenlighting the project.

In the forest crossing case, US lawmakers from Virginia also weighed in July 5 to argue the court should continue to consider the merits of the environmental group's suit, despite the new law, titled the Fiscal Responsibility Act of 2023.

Buoyed by the new law, the gas project, adding another outlet for Appalachian Basin gas production, is finally returning to construction after years of delay amid court rulings finding fault with federal authorizations governing stream crossings, endangered species and the national forest crossing.

In an important milestone, the US Federal Energy Regulatory Commission June 28 cleared Mountain Valley to resume full construction, and the Bureau of Land Management on July 3 issued a notice to proceed with work in the forest. Mountain Valley has said it was mobilizing crews to resume construction in early July and aims to start flowing gas this winter.

With work imminent, the Wilderness Society July 3 asked the 4th Circuit to stay approvals granted by the US Forest Service, pending its challenge of the agency's decisions (Wilderness Society v. US Forest Service, US Bureau of Land Management, 23-1594). That motion adds to the pending request for a stay by a coalition of environmental groups in a case challenging the federal Endangered Species Act documents for the project (Appalachian Voices v. Department of Interior, 23-1384).

"The pipeline company is poised to begin construction on the Jefferson National Forest -- clearing trees, grading, and trenching through steep mountains and sensitive watersheds -- inflicting irreparable harm on petitioner, its members, and the environment absent a stay," said the Southern Environmental Law Center in the July 3 motion on behalf of the Wilderness Society.

The crux of their case, the motion said, is that Mountain Valley cannot be built across the forest "without violating at least eleven standards" in the management plan for the national forest "that are intended to protect soil, water, riparian, visual, old growth and recreational resources."

The groups argue they are likely to prevail on the merits of the underlying case because the Forest Service violated the Natiional Forest Management Act, National Environmental Policy Act and Administrative Procedure Act, "at times directly flouting this court's decisions" in a two prior cases rejecting the Forest Service permissions.

Lawmakers' view

The stay request comes amid back-and-forth filings over whether the debt bill ended the court's role.

Five Democatric US representatives from Virginia on July 5 filed a friend-of-the-court brief supporting arguments that the debt bill's attempt to cut off legal challenges to Mountain Valley in the 4th Circuit was unconstitutional.

"At a minimum, this court should retain jurisdiction until it has heard petitioner's claims on the merits," said the brief on behalf of Representatives Jennifer McClellan, Robert Scott, Gerald Connolly, Donald Beyer and Jennifer Wexton.

Highlighting their concerns over maintaining NEPA's public involvement guarantees, the lawmakers wrote that they opposed the provision greenlighting Mountain Valley in the debt bill "because it ran roughshod over access to Article III courts in pending cases for the most vulnerable of Virginia citizens -- including low-income, elderly, and Indigenous populations."

In doing so, they supported environmentalists' stance that legal precedents indicate that Congress may not direct the appeals courts to reach particular results in pending cases.

While the new Fiscal Responsibility Act aimed to free the project's permits from the cycles of litigation, environmental groups have argued the law violated separation of powers, as they sought to continue pursuing legal challenges of recently reissued permits.

Mountain Valley declined to comment on the pending litigation. In court filings, Mountain Valley and the US agencies have asked the court to dismiss the litigation because the debt bill stripped the court of jurisdiction and rendered moot the petitioners' claims.