MVP Pipeline Project, 94% Complete, Halted by Rogue Court
Jim Willis on NGL Pipelines
Editor & Publisher, Marcellus Drilling News (MDN)
[Editor’s Note: The Fourth Circuit Court of Appeals is a rogue court; hard core enviros “speaking for trees” to kill the MVP pipeline project and putting oaks before people.]
The clown judges of the U.S. Court of Appeals for the Fourth Circuit (i.e. the 4th Circus) have done it again. Two weeks ago Mountain Valley Pipeline (MVP) asked the full court, all of the judges (called en banc) to rehear a couple of recent decisions by three of their clown members (see MVP Appeals 4th Circuit Decisions – Asks Full Court to Rehear). The full court turned their collective noses up and refused. One possible next step is for MVP to appeal the decisions to the U.S. Supreme Court.
In January three justices from the 4th Circuit overturned a permit from the U.S. Fish and Wildlife Service (USFWS) and the Bureau of Land Management (BLM) to allow MVP to build through 3.5 miles of the Jefferson National Forest, for a second time (see 4th Circus Clowns Overturn MVP Permit for Jeff Natl Forest, Again). A few weeks later the same three judges overruled a Federal Energy Regulatory Commission (FERC) decision to allow a change in pipeline installation method (from open trench to underground horizontal directional drilling) based on concerns for a couple of threatened and endangered species that may or may not live in the area where construction happens (see 4th Circuit Throws Out Plan for Safer MVP Drilling re Candy Darter).
The three 4th Circuit judges think they know more about environmental matters (because they read books like Dr. Seuss’ The Lorax) than agencies like FERC, the USFWS, and BLM. No lie. One of the judges quoted from The Lorax in a decision about Dominion Energy’s Atlantic Coast Pipeline project in 2018 (see 4th Circus Pulls Forest Service Permit for Atlantic Coast Pipe). Which is why we refer to them as clowns.
A federal appeals court has denied Mountain Valley Pipeline’s request for a rehearing on two of its recent rulings that have thrown off the timeline for completion of the $6 billion pipeline.
The two separate rulings earlier this year removed approvals that MVP had received from the US Forest Service and US Bureau of Land Management that would help clear the way for the 303-mile pipeline to become operational. That would be a good thing for MVP, a Pittsburgh-based joint venture, as well as for pipeline operator and part owner Equitrans Midstream Corp. (NYSE: ETRN) and EQT Corp. (NYSE: EQT), the Pittsburgh-based natural gas producer that would send gas from southwestern Pennsylvania and West Virginia to the Southeast on MVP.
Friday’s ruling was three lines, saying that none of the appeals court judges wanted to poll the others on the previous two rulings it had made. That denied the petition.
MVP declined comment on the ruling. There’s no new timeline yet on when it could be completed; the pipeline had been projected to be operational by the end of the summer 2022 after several years of delay and additional costs.
“As previously stated, we continue to evaluate the best path forward for the project and expect to provide updated project guidance once the full evaluation is complete,” an MVP spokeswoman said.
Analysts had said previously that it was a long shot, and the court’s own website outlines a high bar for what are called en banc hearings and said most requests are denied. But an analyst told the Business Times that it’s a necessary step on the way to a potential Supreme Court appeal.
Jon Sokolow, a Virginia lawyer and an opponent of MVP, said that the denial was another setback for MVP.
“A unanimous panel of the Fourth Circuit clearly rejected a Forest Service permit to cross the Jefferson National Forest, in a portion of Virginia and West Virginia where construction has barely begun, and no judge on the full Fourth Circuit even requested a poll of the whole circuit to review that ruling,” Sokolow said. “MVP will tell its investors that it is reviewing its options, but the truth is this pipeline is on life support – and rightly so. It is time for MVP to pack up and go home.”
The Roanoke Times usually publishes updates on the MVP project, but did not publish a new update since the 4th Circus ruling. However, just a few days prior to the ruling, the Times published the following article more or less contemplating that the judges would not accept the petition from MVP for a rehearing en banc. The article has some useful extra details about what may happen next, including legislative solutions from Sen. Joe Manchin.
Aside from an appeal to the Supremes, there are only two other options we are aware of: A new law gets passed forcing the completion of the pipeline (circumventing the courts), or an executive order from Biden, which we don’t think is likely. Although the Supreme Court is a long shot, it’s probably the best shot remaining to finish the 94% complete MVP.
Adding a splash of yellow to the drab winter landscape, dozens of excavators and bulldozers sit in rows on a gravel lot, idled by the latest stop in construction of the Mountain Valley Pipeline.
Developers had hoped the equipment would be in the field by now, finishing work on a natural gas pipeline that was supposed to be done four years ago.
But on a mild afternoon last week, crews loaded one of the excavators onto a tractor-trailer bound for a different construction job, one with more promise.
Mountain Valley — which lost two permits this year to a federal appeals court that has repeatedly struck down its government-issued approvals — is facing the greatest danger of collapse since the $6.2 billion infrastructure project was authorized in 2017.
While construction remains at a standstill, efforts to revive the pipeline continue on several fronts:
Attorneys for Mountain Valley have asked the full 4th U.S. Circuit Court of Appeals to reconsider decisions by a three-judge panel, which in late January struck down a permit allowing the pipeline to pass through the Jefferson National Forest and the following week invalidated an opinion from the U.S. Fish and Wildlife Service that work would not jeopardize endangered species.
U.S. Sen. Joe Manchin of West Virginia is calling for legislative or executive action to advance the project. The 303-mile pipeline will start in the Mountain State before passing through the Roanoke and New River valleys.
And with Russia’s invasion of Ukraine tightening the global energy market, supporters of Mountain Valley say it’s needed more than ever for a steady supply of natural gas.
Seeking legal relief
A federal appellate court based in Richmond — and in particular, three judges on the 15-member court — has been perhaps the sharpest thorn in the side of a joint venture of five energy companies that make up Mountain Valley Pipeline LLC.
Chief Judge Roger Gregory and judges Stephanie Thacker and James Wynn have presided over 12 cases in which environmental groups challenged permits issued to Mountain Valley and the Atlantic Coast Pipeline, a similar project that was canceled in 2020 as legal problems mounted.
“That panel’s record speaks for itself,” pipeline attorneys wrote in a recent court filing, stating that all but two of the 12 contested permits have been vacated or stayed over the past four years.
On March 11, a petition filed by Mountain Valley asked the full Fourth Circuit to consider the decisions of the three-judge panel in a rare proceeding known as an en banc hearing.
“The consequences of the panel’s actions are grave,” the petition states. “Its errors have trapped Mountain Valley and the agencies in a perpetual loop, ordered to redo work that was neither arbitrary nor capricious, knowing that revised analysis will yet again be subject to inappropriately aggressive review.”
A key argument is that the three-judge panel substituted its own judgment for that of the Forest Service and Fish and Wildlife Service. Mountain Valley says that violates a long-established precedent that deference should be given to agencies when they decide complex matters involving their own expertise.
The panel engaged in “textbook fly-speckary,” the petitions state, examining in minute detail the Fish and Wildlife Service’s opinion that construction would not jeopardize endangered species in the pipeline’s path, which include the Roanoke logperch and the candy darter fish.
“Worse, the panel’s criticisms in key respects are just wrong,” the filings contend.
In 2018, the Fourth Circuit remanded a Forest Service permit, which allowed the pipeline to pass through 3.5 miles of national forest in Giles and Montgomery counties. The agency spent nearly two years working on an environmental impact statement that addressed the court’s concerns about erosion problems being overlooked, Mountain Valley contends.
“The panel nonetheless vacated the agency’s determination once again, based on modest disagreements over points of secondary significance,” the company’s filing said of the court’s second rejection of the Forest Service permit earlier this year.
Hearings by full court are rare
Mountain Valley faces a steep uphill climb.
When a three-judge panel’s decision is unanimous, as it was in the two cases at issue, the Fourth Circuit is cautious about granting an en banc hearing, according to Carl Tobias, an expert on the court who teaches at the University of Richmond’s law school.
Just four such requests were granted last year by the Fourth Circuit, Tobias said. The court hears appeals from federal administrative agencies and nine district courts in Virginia, West Virginia, North Carolina, South Carolina and Maryland.
“The active judges may defer somewhat to a unanimous panel ruling, especially if the reasoning is persuasive,” Tobias said.
An en banc hearing is generally not ordered unless it is necessary to secure uniformity in the court’s decisions or the case involves a question of “exceptional importance,” according to the rules of the court.
The Sierra Club, one of about a dozen national, state and local environmental groups that have challenged Mountain Valley’s permits, says there is no need for the full court to second-guess its three-judge panel.
“This petition is just another example of MVP grasping for straws to complete their unnecessary project,” Caroline Hansley, a senior campaign representative with the Sierra Club, said last week in a statement.
Pipeline opponents point to Mountain Valley’s environmental track record, which in Virginia includes nearly 400 violations of erosion and sediment control regulations and fines of more than $2 million from state regulators.
“This reckless project cannot be built in a safe manner that complies with standards designed to protect our lands, water and vulnerable species,” Hansley said.
To date, neither the Forest Service nor the Fish and Wildlife Service have joined Mountain Valley, which is an intervenor in the cases, in asking the Fourth Circuit to grant a rehearing.
When asked if the Fish and Wildlife Service supports Mountain Valley’s petition, a spokesman for the service said he could not comment on legal matters. The Forest Service had not provided an answer to the same question by late Friday.
Nathan Matthews, a senior attorney for the Sierra Club who was involved in the Forest Service case, questioned the assertion that the Fourth Circuit substituted its own judgment for that of the agency.
Rather, the Forest Service failed to form any judgments at all in some cases, Matthews said, citing as an example its failure to consider water quality data from government monitors installed a short distance from the Jefferson National Forest.
A legislative solution?
In recent weeks, Mountain Valley has gained an alley in West Virginia Democrat Manchin, who is often more conservative than his party’s base.
Manchin is pushing for reinforcing domestic energy supplies in light of Russia’s invasion of Ukraine, which has tightened the global market for oil and natural gas.
“I know some might bristle at investing in fossil fuel infrastructure as a long-term asset,” the senator said in prepared remarks March 10 to the Energy and Natural Resources Committee, which he chairs.
“But let me tell you — the Mountain Valley Pipeline could be completed in four months if it was finally given the green light. And I’ve got legislation ready that would do just that.”
Details of the bills, which have not yet been introduced, were not available. Manchin’s press office declined to comment.
Manchin has also called on President Joe Biden to employ the Domestic Production Act, directing private companies to step up efforts crucial to national defense interests, in an effort to jump-start Mountain Valley. In the past, the measure has been used for emergency matters such as the COVID-19 pandemic.
When asked earlier this month about the matter, White House press secretary Jen Psaki suggested that the administration was not inclined to pay oil companies for “what they probably already have the capacity to do,” according to reporting by The Hill, which covers politics and policy from Washington, D.C.
Manchin’s support for Mountain Valley has also been reflected in his questions to nominees for Department of Interior positions and to members of the Federal Energy Regulatory Commission, the lead agency responsible for approving natural gas pipelines and overseeing their construction.
Mountain Valley “has run into court case after court case after court case,” Manchin said in a recording posted to the committee’s website. “This product needs to get to market.”
Debate over need continues
Ever since 2014, when plans to bury a 42-inch pipe along the mountains of Southwest Virginia sparked an intense controversy that continues today, there’s been debate over the need for the fuel it will carry.
Pipeline opponents say residential and commercial use of natural gas has remained stable over the past 20 years and is expected to remain so for just as long.
Transporting 2 billion cubic feet per day of natural gas to markets in the mid-Atlantic and Southeastern regions of the county will worsen a climate crisis that should be addressed with renewable energy, they say.
A small crowd of protesters gathered Wednesday outside Roanoke Gas Co., which plans to take natural gas from two taps of pipeline and distribute it to its 60,000-plus customers in the Roanoke and New River valleys.
“It’s a tragedy that MVP’s partners haven’t been responsible to their shareholders by canceling this ever increasingly expensive boondoggle,” said Freeda Cathcart of Roanoke, a frequent critic of Roanoke Gas’s involvement with the project.
A subsidiary of RGC Resources, the parent company of Roanoke Gas, is a 1% partner in building the pipeline.
Paul Nester, president and CEO of RGC, disputed the group’s positions, which include arguments that there is sufficient capacity in the two other pipelines that currently supply Roanoke Gas.
“Multiple federal and state regulatory bodies have confirmed the need for the energy this important infrastructure project can provide to not only this region, but the entire United States,” Nester said.
When it approved the project in 2017, FERC found there was a public need for the gas — a decision it reaffirmed in 2020 when it gave Mountain Valley a two-year extension to complete the project. FERC’s initial finding has been upheld by the U.S. Circuit Court of Appeals for the District of Columbia.
Despite the recent setbacks, Mountain Valley says it still plans to complete the project. Details on when that may happen, and whether the $6.2 billion cost of construction will rise once again, have been sketchy.
At a trial last week in Roanoke’s federal court, held to determine how much property owners should be paid for land taken by eminent domain, a Mountain Valley official testified that the hope is to have the pipeline in operation by next summer.
This post appeared first on Natural Gas Now.