For the second time, a federal appeals court has thrown out government approvals for a natural gas pipeline to pass through the Jefferson National Forest.
A written decision Tuesday from the 4th U.S. Circuit Court of Appeals marked the latest of many setbacks for the Mountain Valley Pipeline since construction began in 2018.
The U.S. Forest Service and the Bureau of Land Management failed to properly predict — and to prevent — erosion and sedimentation caused by building the massive infrastructure project, a three-judge panel for the court found.
Judge Stephanie Thacker wrote in the unanimous decision that the agencies “erroneously failed to account for real-world data suggesting increased sedimentation along the pipeline route.”
The ruling sends the permit back to the Forest Service and BLM for reconsideration. The first time the court did that, in July 2018, it took about two years for the agencies to approve a second permit — which now has also been found lacking by the Fourth Circuit.
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In its 29-page opinion, the court also ruled that the Forest Service failed to comply with its 2012 Planning Rule and that it prematurely authorized the crossings of some streams in the national forest.
“Again the courts have served as a backstop for agencies that failed to protect the public and our resources from this dangerous and destructive project,” David Sligh of Wild Virginia, one of the environmental groups that challenged the permit, said in a statement.
“The Forest Service and BLM have now been shown to have ignored important scientific information and bypassed their own rules for the second time, all to allow a private corporation to use and abuse the public resources they are supposed to protect and preserve for us all.”
Efforts to reach the Forest Service were unsuccessful Tuesday.
Although much of the 303-mile pipeline has been completed, it has not been allowed to pass through a 3.5-mile section of the Jefferson National Forest in Giles and Montgomery counties.
Mountain Valley also lacks a final permit to cross the remaining streams and wetlands in its path from northern West Virginia, through the New River and Roanoke valleys, to connect with an existing pipeline near the North Carolina line.
Other approvals by the U.S. Fish and Wildlife Service and the Federal Energy Regulatory Commission are also being challenged in court by opponents of the deeply controversial project.
On Tuesday, Mountain Valley spokeswomen Natalie Cox wrote in an email that the joint venture of five energy companies is “thoroughly reviewing the Court’s decision regarding MVP’s crossing permit for the Jefferson National Forest and will be expeditiously evaluating the project’s next steps and timing considerations.”
Mountain Valley has previously said it is on track to finish the $6.2 billion project by this summer.
Opponents hope Tuesday’s decision will at least delay completion once again, and perhaps be the final nail in the coffin they long for.
“This is a big hit in the impending downfall of the Mountain Valley Pipeline project,” Russell Chisholm, co-chair of the Protect Our Water, Heritage, Rights Coalition, said in a statement.
“If MVP is unfit for the protected Jefferson National Forest, it is unfit for our waters, our land, and our communities, full stop.”
Since 2018, inspections by the Virginia Department of Environmental Quality have found nearly 400 violations of erosion and sediment control regulations. Mountain Valley has blamed the problems on record rainfalls.
When the Fourth Circuit threw out the first permit to pass through the Jefferson National Forest in 2018, it said the Forest Service was too accepting of Mountain Valley’s assurances that burying a 42-inch diameter pipe along steep slopes would not cause major problems with muddy runoff.
Authoring the court’s opinion in that case as well, Thacker wrote:
“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.”
Some questioned if the court’s second opinion will be enough to kill a project that has seen other permits rejected, only to have them re-issued by federal and state agencies.
“I think it’s extremely unlikely that this decision will serve as a deathblow to the project,” said Josh Price, vice president of energy policy at Capstone, a global policy analysis firm for corporate and investor clients.
“The issues identified by Fourth Circuit should be easily resolvable by the agencies,” Price, who has followed Mountain Valley from the outset, wrote in an email. “We only have a 5% probability that MVP will be cancelled.”
More likely, he said, the pipeline’s completion will be pushed back to the middle of next year.