BRUSH MOUNTAIN — For four years now, the half-mile hike from David Seriff’s front door to a ridgetop has offered the same vista: a 125-foot-wide trough plowed up one side of the mountain and down the other. Along the route, segments of an unfinished natural gas pipeline lie in a state of suspended animation.
Seriff is a declarant in lawsuits that seek to stop the Mountain Valley Pipeline.
A federal appeals court recently rejected two government permits that are needed to complete a massive infrastructure project that opponents say is an environmental train wreck.
On Friday morning, as he stood on the windswept ridge, Seriff’s outlook had not changed.
“I think it’s another nail in the coffin,” he said of the 4th U.S. Circuit Court of Appeals’ Jan. 25 reversal of a permit allowing the pipeline to pass through the Jefferson National Forest, which abuts his home north of Blacksburg. A second ruling last Thursday invalidated a finding that endangered species would not be jeopardized.
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“But we haven’t killed the beast.”
If the complex regulatory and legal proceedings that have enveloped the 303-mile pipeline since 2018 could be reduced to a simple baseball analogy, Mountain Valley has two strikes against it.
Three sets of key permits — the U.S. Forest Service’s approval for the buried pipe to cut through 3.5 miles of public woodlands, the U.S. Fish and Wildlife Service’s finding that it would not destroy the habitats of endangered species, and the U.S. Army Corps of Engineers’ green light for Mountain Valley to cross streams and wetlands — have each been struck down twice by the Fourth Circuit.
Mountain Valley is still swinging, though.
“With total project work nearly 94% complete, Mountain Valley remains committed to meeting Americans’ energy needs and completing this pipeline,” company spokeswoman Natalie Cox wrote in an email Friday.
The joint venture of five energy companies is reviewing the lengthy opinions to see if there’s any way it can still meet its goal of completing the pipeline this summer.
“For eight years, the MVP project team has worked diligently with state and federal regulators to ensure this important infrastructure project is built and operated to the highest levels of safety and environmental standards,” the email read.
“The MVP has undergone an unprecedented level of review, and rigorous analysis has repeatedly demonstrated that this project can in fact be built safely and responsibly. “
Another delay likely
If the pipeline is to survive, government agencies must again rewrite permits to satisfy the Fourth Circuit — which has been perhaps the biggest challenge for developers since they first announced the project nearly a decade ago.
“MVP is now highly unlikely to enter service in 2022, in our view, and the in-service date could be pushed into 2024 depending on how the court’s concerns are addressed,” Height Capital Markets, an investment banking firm that has followed the project, said in a written commentary last week.
Of the two most recent decisions, the reversal of a biological opinion that found no jeopardy to two endangered fish — the Roanoke logperch and the candy darter — was seen as the more troubling for Mountain Valley.
In its “non-legal expert” reading, Height said the Fourth Circuit appears to have extended the scope of the Endangered Species Act “to include a standard that would be difficult for most new infrastructure projects to meet.”
Judge James Wynn wrote in a unanimous opinion from a three-judge panel that the Fish and Wildlife Service failed to adequately consider two things: the environmental baseline of the two imperiled fish and the cumulative effects of future events, such as climate change.
“We recognize that this decision will further delay the completion of an already mostly finished pipeline, but the Endangered Species Act’s directive to federal agencies could not be clearer: halt and reverse the trend toward species extinction, whatever the cost,” the 40-page opinion concluded.
Wynn wrote of the “apparently not-long-for-this world candy darter.”
In oral arguments last year, lawyers for the Sierra Club told the court that the small fish, easily distinguishable by its vibrant teal, red and orange colors, could be gone forever within 25 years.
The candy darter and Roanoke logperch are an important link to the aquatic food chain, feeding on insects before they are sometimes eaten by larger fish and other natural predators.
Worldwide, 23 endangered species were recently declared extinct, from a tiny catfish to some of the planet’s most spectacular birds, according to the Center for Biological Diversity.
More than a million other species could be lost in the coming decades, the center says.
Running a 42-inch diameter steel pipe across the habitat of the candy darter may not be enough, alone, to wipe out the fish by making it harder to feed and breed. However, the Fourth Circuit ruled that the Fish and Wildlife Service needed to better take into account the bigger picture.
Whether the court went too far is a question that could be grounds for an appeal, Height said in its analysis.
One option for Mountain Valley would be to ask the full Fourth Circuit, which consists of 15 judges, to reconsider the panel’s ruling. No such step had been taken by Friday, according to court records.
Regulatory and legal roadblocks
A four-year history of legal battles between environmental groups and fossil fuel interests offers a possible scenario of what could happen next with Mountain Valley.
The last time the company had so many permits remanded or stayed, in October of 2019, the Federal Energy Regulatory Commission stepped in and ordered all work to stop on the pipeline.
After most of the permits were reissued, FERC — the lead agency overseeing construction — lifted the stop-work order in the fall of 2020.
Should that happen again, decisions would be made by a much different FERC, whose five members are appointed by the president. Shortly after he took office last year, President Joe Biden named then-commissioner Richard Glick, who had voted against the pipeline previously, as chair.
In December, a new member appointed by the Democratic president joined the commission, giving pipeline opponents what they hope will be a 3-2 advantage in decisions that had earlier favored the pipeline.
At the same time it allowed work to resume in 2020, FERC also gave Mountain Valley another two years to complete the pipeline. The company had initially said the job would be done by late 2018, but has run into repeated delays caused by the legal challenges.
The current FERC certificate of public necessity expires Oct. 13.
Even if the commission does nothing before then, opponents say the Fourth Circuit’s most recent rulings effectively stop all work on the pipeline. The Army Corps is currently considering a third stream-crossing permit, after the first two were rejected.
But the Army Corps cannot act now that Mountain Valley lacks a biological opinion from the Fish and Wildlife Service, according to Caroline Hansley, an organizer with the Sierra Club’s Dirty Fuels Campaign.
“It’s full stop, and I would argue they have no where to go,” Hansley said.
Construction of the pipeline is currently in a winter break. The most recent weekly report filed with FERC states that the only work being done is maintenance of erosion and sediment control measures.
The joint venture’s lead partner said last November that it expected to begin work early this spring and be done by summer. That would allow 2 billion cubic feet of natural gas per day to begin shipment from northern West Virginia, through the New River and Roanoke valleys, to connect with an existing pipeline near the North Carolina line.
“It’s in the red zone for completion,” Thomas Karam, CEO of Equitrans Midstream Corp., said in a conference call to discuss the company’s third quarter results with financial analysts.
An update may come on Feb. 22, when Equitrans is scheduled to present its year-end earnings in another conference call.
A magical mountain
From his vantage point atop Brush Mountain, David Seriff woefully surveyed a muddy strip carved into the mountain four years ago. Graffiti has been painted on some sections of pipe stacked on wooden platforms along the right-of-way.
“It hurts,” Seriff said. “I’ve always been an outdoors kind of person.”
Several times a week, the 65-year-old makes the hike along a Forest Service road to the pipeline’s path across the mountain.
It is here where a protester stopped construction for a day in 2018 by climbing to the top of an excavator and refusing to come down. Emily Satterwhite was one of many opponents who have occupied trees, construction equipment and other blockades since work began.
On Friday, the site was more sedate as Seriff pointed to the Jefferson National Forest on one side and the Brush Mountain Wilderness area on the other.
As a declarant in lawsuits filed by a coalition of national, state and local environmental groups, Seriff wrote in affidavits about how he — and the natural area where he lives — have been harmed.
“I find this mountain magical, especially in the ethereal hours of dawn and dusk,” he wrote in a 2020 essay.
“As I survey the massive steel pipes stacked atop what had been deemed a specially protected place, it feels like a punch in the gut,” he wrote. “More than once I’ve simply sat here and wept while I pondered the death of forest life caused by this unneeded project.”
Steep slopes usually covered by trees and shrubs have been cleared to dig a ditch for the pipeline.
When it rains, muddy runoff is swept from construction sites. The Virginia Department of Environmental Quality has cited Mountain Valley more than 300 times with violating erosion and sediment control regulations.
Nearly a quarter of the pipeline’s route takes it up and down slopes with a gradient of more than 30%. In the Fourth Circuit’s opinion last week, Wynn wrote that black diamond ski slopes — among the steepest and most difficult runs on any mountain — typically have a gradient of 40% or higher.
Mountain Valley and its supporters say the best way to stop environmental damage is to finish burying the pipeline and plant vegetation over the right of way.
Opponents counter that if that happens, the natural gas flowing beneath the ground at high pressure will go on to be burned to heat homes and power businesses, worsening a climate crisis that is best addressed with the use of renewable energy.
Regulatory agencies or the courts may not kill Mountain Valley outright. But opponents hope that the costs and delays caused by their legal challenges will eventually force investors to give up.
“They’re eight years in, $3.5 billion over budget, and four years behind schedule,” Hansley said.
If the pipeline is to be stopped, she said, “I don’t think we’ve ever had a stronger case than we do now.”
