In the latest legal strike at the Mountain Valley Pipeline, a coalition of environmental groups is contesting a federal agency’s decision to allow the troubled project to move forward.
At issue is the Federal Energy Regulatory Commission’s Oct. 9 order that allowed stalled construction of the natural gas pipeline to resume, and extended for another two years its deadline for completion.
An attorney for Appalachian Mountain Advocates, a law firm that represents the seven groups, asked the U.S. Court of Appeals for the District of Columbia to review FERC’s decision.
Although the two-page petition does not state the grounds for appeal, attorney Benjamin Luckett raised a number of objections in a brief filed last month with FERC that asked the agency to reconsider.
Since FERC initially approved the project in 2017, new information has surfaced that “drastically alters the picture surrounding the pipeline,” Luckett wrote.
Market conditions cited by FERC in finding there was a public need for the gas to be transported by the 303-mile pipeline have changed, he asserted, while construction has harmed the environment more than was anticipated three years ago.
Allowing construction to resume “ignores the extent of sedimentation, number of major slips [or slope failures], extent of blasting, impacts on threatened and endangered species, and numerous other environmental impacts,” Luckett wrote.
Mountain Valley has been cited repeatedly by regulators in Virginia and West Virginia for failing to curb muddy runoff from construction sites.
An official with FERC declined to comment, citing a policy of not talking about pending litigation.
Mountain Valley said in a statement that the most recent filing “by known project opponents is simply about stopping pipelines, not about environmental protection.” Spokeswoman Natalie Cox described FERC’s oversight as “comprehensive, thoughtful, and rigorous.”
In its orders, FERC has maintained that the best way to limit environmental harm is to complete the long-delayed project.
“These continued challenges by the opposition to previously authorized and issued permits have caused not only delays for the project, but more importantly have caused lengthier, unnecessary disruption for all landowners along the route,” Cox’s email stated.
While it could be months before the appellate court acts on the petition filed Tuesday, it’s possible that the environmental groups could seek a stay to construction pending the case’s final outcome.
The mere fact that a legal challenge was filed so soon after FERC’s decision was unusual in itself.
In the past, the panel of presidential nominees has often delayed making a final call when asked to reconsider its decisions. By issuing so-called tolling orders, FERC has met 30-day deadlines to respond by saying that it will make a final decision later. That has allowed pipeline construction to move forward while delaying legal challenges for months or longer.
The U.S. Court of Appeals for the District of Columbia put an end to that practice in a June decision.
Judge Patricia Millett wrote in a 10-1 ruling — which did not involve Mountain Valley — that the virtually automatic use of tolling orders does nothing more than buy FERC time while stalling judicial review.
“Tolling orders, in other words, render the Commission’s decisions akin to Schrödinger’s cat: both final and not final at the same time,” Millet wrote, referring to a quantum mechanics thought experiment in which a hypothetical cat placed in a sealed box with a radioactive source is considered both alive and dead.
The decision allowed a more timely appeal of FERC’s Oct. 9 decision, which was brought by the Sierra Club, Appalachian Voices, the Chesapeake Climate Action Network, the Indian Creek Watershed Association, Preserve Craig, the West Virginia Rivers Association and Wild Virginia.
Previous challenges filed by the groups and others have increased the costs of the $6 billion project and delayed its completion by three years.
FERC issued a stop-work order in October 2019, when at least three sets of permits had been suspended or delayed. A year later, after Mountain Valley had regained or was on track to regain its permits, construction was allowed to resume.