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Court hears arguments in latest legal attack on Mountain Valley Pipeline

Court hears arguments in latest legal attack on Mountain Valley Pipeline

MVP steep slopes

Workers prepare a section of land for the Mountain Valley Pipeline in Franklin County this past May.

Environmental groups waged their latest attack Friday on the Mountain Valley Pipeline, asking a federal appeals court to again strike down key permits issued to the embattled project.

After listening to oral arguments by attorneys from both sides, a three-judge panel of the 4th U.S. Circuit Court of Appeals is expected to issue written opinions by the end of the year.

At issue are two key decisions by federal agencies: One to allow the natural gas pipeline to pass through 3.5 miles of the Jefferson National Forest, and the other a finding that the massive infrastructure would not jeopardize endangered species of fish and bats in its path.

Challenges from the groups, led by Appalachian Voices and Wild Virginia, already have caused delays to a project that is running nearly three years behind schedule.

Questions about the pipeline’s environmental impacts — and whether they were adequately addressed by the government — previously led to suspensions of the U.S. Forest Service’s decision to let the pipeline pass through federal woodlands, the U.S. Fish and Wildlife Service’s opinion on endangered species, and the U.S. Army Corps of Engineers’ approval for the pipeline to cross streams and wetlands.

Permits were reissued for the first two areas and are now facing a second challenge.

A third set of approvals to cross water bodies was stayed last year by the 4th Circuit, prompting Mountain Valley to pursue a different process that has yet to lead to new permits being granted.

One of the arguments made Friday by Sierra Club attorney Elly Benson, who represented the environmental groups, was that the Fish and Wildlife Service did not properly consider climate change in its analysis of endangered species, which include the Roanoke logperch and the candy darter.

Benson noted that when Mountain Valley violated erosion and sediment control regulations hundreds of times, the company repeatedly blamed the infractions on record rainfalls since construction began in 2018.

“That’s exactly the kind of impact that a climate analysis would help take into account,” she told the three appellate judges — all of whom were involved in earlier 4th Circuit rulings that went against the pipeline.

In defending the latest permits, attorneys for the federal agencies told the court that its earlier concerns had been taken into account.

Mountain Valley, which was allowed to intervene in the case even though it was not being sued, noted that pipelines and other commercial activities are routinely allowed in national forests.

“We’re talking about a national forest, not a national park” that has more stringent restrictions on human influence, said Donald Verrilli, an attorney for the joint venture of five energy companies building the pipeline.

In 2018, the 4th Circuit reversed the Forest Service’s permit, ruling that the agency had been too accepting of Mountain Valley’s assurances that burying a 42-inch diameter pipe along steep slopes in the Jefferson National Forest would not cause major problems with erosion and sedimentation.

“We still think the agency didn’t take a hard look at sediment,” Nathan Matthews, another attorney for the Sierra Club, said in asking the court to invalidate the approval for a second time.

The judges hearing the arguments regularly interjected questions, which including asking the Forest Service why models it relied on predicted far less sedimentation than what has been measured by USGS gauges.

“How is the model an effective measure of what will happen in the forest if it is not considering real-world evidence?” Judge Stephanie Thacker asked at one point.

The court’s earlier reversals of permits issued to Mountain Valley came during the administration of Donald Trump, and pipeline opponents were hopeful that under the control of President Joe Biden, federal agencies would think twice about defending the renewed permits.

That has not happened, with lawyers for the government arguing Friday that additional steps have been taken to correct earlier problems.

Despite facing a second round of legal challenges to its permits, Mountain Valley has been allowed to continue construction on much of the 303-mile pipeline for the past year.

It is currently not allowed to cross streams and wetlands until it receives new permits from the Army Corps and the Federal Energy Regulatory Commission. Assuming those permits are granted — and others are not reversed yet again — Mountain Valley says it expects to complete work on the $6.2 billion project next summer.

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Laurence Hammack covers environmental issues, including the Mountain Valley Pipeline, and business and enterprise stories. He has been a reporter for The Roanoke Times for more than three decades.

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