July 30, 2018 Read More →

Citing regulatory ‘capitulation,’ federal court blocks construction of Mountain Valley Pipeline through Virginia

Roanoke Times:

A federal appeals court on Friday struck down two key decisions allowing a natural gas pipeline to slice through the Jefferson National Forest.

The 4th U.S. Circuit Court of Appeals sided with the Sierra Club and other conservation groups that challenged approvals by the U.S. Forest Service and the Bureau of Land Management for a 3.6-mile segment of the Mountain Valley Pipeline.

Affected woodlands are in Giles and Montgomery counties and Monroe County, West Virginia. The pipeline’s route through the national forest will also take it under the Appalachian Trail atop Peters Mountain.

During oral arguments in May, a three-judge panel raised pointed questions about the Forest Service’s acceptance of Mountain Valley’s assurances that it could control erosion and sediment caused by running a 42-inch diameter buried pipeline along steep mountainsides.

“MVP’s proposed project would be the largest pipeline of its kind to cross the Jefferson National Forest,” Judge Stephanie Thacker wrote in the opinion. “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 forest lands.”

Although the court’s decision was tailored to a small section of the 303-mile pipeline, opponents said it could have implications beyond the national forest.

Now that Mountain Valley lacks valid permits from the Forest Service and the Bureau of Land Management, some say that calls into question an order from the Federal Energy Regulatory Commission that set the project in motion last October.

Earlier in the week, a partner in the corporate venture said completion of the pipeline has been pushed back to early 2019, citing the 4th Circuit’s earlier stay of the permit allowing stream crossings in West Virginia.

In its Friday decision, the court said it was sending two decisions back to the appropriate agencies for further review. The first was the Forest Service’s amendment of the Jefferson National Forest Land Resource Management Plan to accommodate the pipeline. The second was a right-of-way through the forest granted by the Bureau of Land Management.

It was not clear how long the reconsideration process might take.

A key issue in the case was Mountain Valley’s assertion, made during discussions with the Forest Service, that its erosion and sediment control measures would be 79 percent effective. At first, Forest Service officials were highly skeptical of such a rosy scenario.

The calculation is a “vast overestimate of containment,” Forest Service officials wrote in comments to Mountain Valley cited in court records. “It is more appropriate to err on the side of worst case scenario, rather than best case. Update the analysis to reflect a … factor equal to or less than 48 percent containment.”

Yet later in process, Forest Service officials backed off of the directive and accepted the 79 percent projection. When Chief Judge Roger Gregory asked why during oral arguments in May, it prompted the following exchange:

“This is part of the robust back and forth, with the agency asking hard questions,” said Trey Sibley, who was representing Mountain Valley after the company was allowed to intervene in the case.

“I’m missing the robust side of this,” Gregory responded. “This seems like a one-way street. I don’t call that robust. I call that capitulation.”

Since April, state regulators have put Mountain Valley on notice that its sediment and erosion control measures were inadequate at more than a dozen locations in Virginia and West Virginia. At least one inspection in the Jefferson National Forest found similar issues, according to filings with FERC.

More: Federal appeals court delivers blow to Mountain Valley Pipeline

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