Environmental groups asked the U.S. Appeals Court for the 4th Circuit to stay Virginia's water quality certification for the 2-Bcf/d Mountain Valley natural gas pipeline, saying project developer Mountain Valley Pipeline LLC would otherwise complete stream crossings before the environmentalists' legal challenge is resolved.
In seeking a stay pending judicial review, the groups on Jan. 4 cited Mountain Valley executives' November 2021 discussion of plans to ramp up construction in February in order to place the pipeline in service during the summer of 2022. The court's decision on whether to grant a stay could affect whether the EQM Midstream Partners LP-led developer will meet its target.
At issue is the Virginia State Water Control Board's December 2021 water quality certification for the mostly complete, 300-mile pipeline project, which would add an outlet for Appalachian Basin gas production. The water quality certification could help lay the groundwork for an important federal authorization: the U.S. Army Corps of Engineers' Clean Water Act Section 404 permit allowing Mountain Valley to complete work through streams and wetlands.
In their stay request, the environmental groups said Virginia has "misconstrued governing law and entirely failed to consider important aspects of the problem." In their view, the state failed to follow the law because it "refused to consider crossing location alternatives." Further, the environmentalists said the state failed to properly scrutinize and "irrationally accepted" the Mountain Valley analysis of whether alternative crossing methods were feasible.
Organizations challenging the certification in the 4th Circuit included the Sierra Club, Appalachian Voices, Chesapeake Climate Action Network, Wild Virginia, Preserve Craig, Blue Ridge Environmental Defense League, Preserve Franklin, Preserve Brent Mountain and Preserve Giles County (Sierra Club, et al. v. State Water Control Board, 21-2425).
The environmentalists said they are likely to succeed on the merits because Virginia agencies "flatly refused" to consider, as Virginia law requires, whether Mountain Valley's proposed crossing locations would avoid and minimize impacts to the maximum extent practicable. Instead, the agencies relied on a view that state law barred them from altering a siting determination made by the Federal Energy Regulatory Commission or State Corporation Commission. The groups said the agencies misconstrued the law under which the agencies retain authority to deny an application where crossings are not the least damaging.
Further, the groups said the Virginia Department of Environmental Quality did not apply technical expertise to evaluate whether alternative crossing methods were feasible at specific locations. They said the permit writer who spoke during a Dec. 14 State Water Control Board meeting said he had to accept Mountain Valley's crossing-method analysis at some point because he was "not particularly qualified" in civil engineering.
"If DEQ's assigned staffer was not qualified to evaluate MVP's application, it was incumbent on DEQ to get the input of a qualified person," attorneys for the environmental groups wrote.
Responses to the motion for stay are due Jan. 11, and additional replies are due Jan. 14.
Mountain Valley was seeking to regain authority for water crossings after prior setbacks in the 4th Circuit affecting its Section 404 permit.
On Dec. 30, the project cleared another hurdle on that path, receiving a water quality certification from the West Virginia Department of Environmental Protection. That authorization also faces a legal challenge in the 4th Circuit from environmental groups.
Maya Weber is a reporter with S&P Global Platts. S&P Global Market Intelligence and S&P Global Platts are owned by S&P Global Inc.