RICHMOND — The legal fight against the Mountain Valley Pipeline ramped up Tuesday, with lawyers in two cases asking a federal appeals court to slow down the project’s run through Southwest Virginia.
In back-to-back oral arguments, the 4th U.S. Circuit Court of Appeals was first asked to reverse a decision by the State Water Control Board, which issued a water quality certification after finding a “reasonable assurance” that the natural gas pipeline would not pollute the 500-some streams and wetlands it will cross.
The same three-judge panel then heard a challenge of the U.S. Forest Service’s approval for the buried pipeline to cut through the Jefferson National Forest.
Both cases are being brought by a variety of conservation groups and individuals who say that building the largest such pipeline ever seen in Virginia will wreak environmental havoc.
Written decisions are expected in the coming weeks.
Although tree-cutting for the 303-mile pipe is well underway, opponents are hoping for at least a delay as the judicial system catches up with about a half-dozen legal attacks, filed months ago during a regulatory process that has granted approval for the pipeline at every step.
One judge wondered from the bench whether is was too late to stop the train.
“I’m just not sure what the process is,” Judge William Traxler said during arguments about the water board’s key vote last December that moved the project forward. “It seems to me we are in no-man’s land.”
But later, during arguments in the second case, Chief Judge Roger Gregory raised pointed questions about the process used by the Forest Service to evaluate a 3.5-mile route the pipeline will take across steep mountain slopes and under the Appalachian Trail.
At first, the Forest Service was highly skeptical of Mountain Valley’s assurances that its erosion and sediment control measures would be 79 percent effective. But as the approval process neared an end, the agency backed down.
“This is part of the robust back and forth, with the agency asking hard questions,” said attorney Trey Sibley, who represented Mountain Valley after the company was allowed to intervene in the case.
“I’m missing the robust side of this,” Gregory replied. “This seems like a one-way street. I don’t call that robust. I call that capitulation.”
Of the two cases argued Tuesday, the challenge of the state water board’s certification could potentially have the broader impact. Should the Sierra Club and about a dozen other petitioners prevail, the panel would have to restart a lengthy process that Mountain Valley must complete before moving forward.
Ben Luckett of Appalachian Mountain Advocates, who represents the petitioners, argued that the state’s review of the project fell short in three major ways.
First, he said, the water board and the Virginia Department of Environmental Quality ceded their authority to examine individual stream crossings to the U.S. Army Corps of Engineers, limiting the state’s review to so-called upland areas.
DEQ then relied on general mitigation measures proposed by Mountain Valley to determine that the pipeline would not impact water quality, meaning that an antidegradation analysis was not needed.
And finally, Luckett argued, the water board’s decision was made before DEQ staff approved erosion and sediment control plans, a key piece to the puzzle that the citizens board should have weighed in on.
Written arguments in the case contend that clearing land and digging trenches for the 42-inch-diameter pipeline across steep mountain slopes and through pristine streams will unearth harmful sediment, which will be washed by erosion into drinking water supplies.
In 2014, construction of a 12-inch pipeline on Peters Mountain in Giles County unleashed what inspectors said “looked like a lava flow” of sediment that became embedded in a nearby steam, according to the brief.
Toby Heytens, who as Virginia’s solicitor general defended the two state bodies, countered that their comprehensive review went far beyond what was required.
“They subjected the pipeline to a level of scrutiny that is unprecedented for Virginia,” he told the three-judge panel.
DEQ made more than 70 recommendations aimed at addressing environmental impacts, according to written arguments in its defense, and held more than 60 meetings and work sessions to develop mitigation plans.
And while state certification is important, Heytens said, it is but one part of a process that is largely controlled by the Federal Energy Regulatory Commission.
The commission granted a key approval last October when it found there was a public need for the natural gas to be shipped from northern West Virginia to Pittsylvania County.
FERC’s approval gave Mountain Valley, a joint venture of five energy companies headed by EQT Midstream Partners of Pittsburgh, the power to use eminent domain to obtain easements through land it needs for the pipeline — over the objections of nearly 300 property owners in Virginia.
Later this week, the 4th Circuit will hear arguments in another case that questions whether eminent domain, which allows the taking of private land for a public use, should be allowed when the taker is a corporate venture such as Mountain Valley.