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Federal appeals court delivers blow to Mountain Valley Pipeline

Federal appeals court delivers blow to Mountain Valley Pipeline

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Felled trees are shown on July 18 on Peters Mountain just below the ridgeline, which the Appalachian Trail follows. The Mountain Valley Pipeline route through the Jefferson National Forest would take it beneath the Appalachian Trail atop Peters Mountain. Our editorial at left looks at how the Appalachian Trail could complicate matters for both the Mountain Valley Pipeline and the Atlantic Coast Pipeline, or not.

In what environmentalists called a major victory, 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.

Joining Thacker in the 44-page opinion were Chief Judge Roger Gregory and Judge William Traxler; the same trio is currently considering another case in which a key approval by Virginia’s State Water Control Board is under attack.

A similar ruling in that case “could mean trouble for the MVP’s route in the entirety of Virginia,” the Sierra Club said in a statement.

And 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.

FERC’s approval “requires all federal authorizations to be in place in order for construction to take place,” Ben Luckett, an attorney for Appalachian Mountain Advocates, wrote in a letter to the agency last month.

That argument — which Luckett made in a separate case after the 4th Circuit stayed a U.S. Army Corps of Engineers permit allowing the pipeline to cross streams and rivers in West Virginia — should also apply to Friday’s decision, he said

FERC has not responded to Luckett’s June 26 letter.

A spokeswoman for Mountain Valley issued a statement Friday that read in part: “MVP is working with the agencies to evaluate the effect of the order on construction activities in the National Forest, which amounts to about 1 percent of the overall project route.”

In an email, Natalie Cox said that many parts of the Sierra Club’s challenge were rejected by the court, which “largely upheld BLM’s and the Forest Service’s compliance with the National Environmental Policy Act.”

“The court also concluded that the Forest Service did not fully explain its rationale on sedimentation impacts and that BLM did not address the impracticality of different alternative routes,” Cox wrote. Her statement did not directly address a question about what impact the court’s decision might have on the entire project.

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. Officials with the agencies could not be reached Friday.

But at least for a day, pipeline opponents were savoring what was perhaps the most significant ruling to come during nearly four years of fighting the $3.7 billion project in regulatory proceedings, court challenges and grass-roots demonstrations.

“We have said all along that we can’t trust Mountain Valley Pipeline to protect Virginia’s water, so it’s refreshing to see the court refuse to take them at their word,” Nathan Matthews, a Sierra Club attorney who argued the case, said in a statement.

“We aren’t buying the gas industry’s claims about their water protection methods and now, the courts aren’t either,” Matthews said.

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 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.”

The shift in Forest Service’s position is “particularly concerning,” the court would later write in its opinion, in light of comments by Mountain Valley that using the 48 percent figure “would undercut other studies and numbers supporting the project, causing the entire project to fail or be delayed.”

When runoff flows unchecked from construction areas, harmful sediment can contaminate private wells and public water supplies, pipeline opponents have argued.

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.

Joining the Sierra Club in the legal challenge were Wild Virginia, Appalachian Voices, the Wilderness Society, Preserve Craig and Save Monroe.

“I am very relieved that MVP cannot destroy the Appalachian Trail and our beloved Peters Mountain,” Maury Johnson of Save Monroe said. “I feel that when other cases are heard by the courts we will win these as well and hopefully MVP will just be a bad nightmare.”

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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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