The U.S. Court of Appeals for the D.C. Circuit on Friday rebuffed a challenge mounted by environmental groups seeking to stop Mountain Valley Pipeline LLC from restarting construction in areas reauthorized by FERC.
A coalition including the Sierra Club, Appalachian Voices and the Chesapeake Climate Action Network late last month filed an emergency motion asking the court to stay recent orders from the Federal Energy Regulatory Commission clearing MVP to resume construction along much of the route outside of a portion near the Jefferson National Forest.
The groups also asked the D.C. Circuit to stay FERC’s decision to grant a two-year extension of the original deadline for the project to complete construction.
However, the court denied the motion, issuing a one-page order Friday finding that the environmental groups “have not satisfied the stringent requirements for a stay pending court review.”
Analysts at ClearView Energy Partners LLC said in a note to clients shortly following Friday’s decision that the “status quo” remains the same for MVP, with the pipeline still cleared to resume work as planned in areas previously authorized by FERC.
However, MVP will need further regulatory action before it can resume construction on waterbody crossings — held up over problems with the previously issued Nationwide Permit 12 approvals — and on the portion of the route near the proposed national forest crossing, the ClearView analysts noted.
MVP recently laid out a new strategy to obtain the remaining permits and complete construction on the 303-mile, 2 million Dth/d natural gas conduit. Instead of relying on the stayed Nationwide Permit 12 waterbody crossing permits, the developer plans to seek new permitting from the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act.
To that end, MVP in a letter filed with FERC Friday said it was submitting its application for the Section 404 approval. The operator asked that its existing Nationwide Permit 12 authorizations be administratively revoked “to avoid unnecessary expenditure of public resources in existing litigation.”
MVP’s new strategy follows a change in leadership at FERC under the Biden administration. Chairman Richard Glick, a Democrat, has said FERC should require MVP to have all necessary permits in hand before resuming construction anywhere along the project route.
Under Glick’s direction, this would ostensibly make the Nationwide Permit 12 approvals — stayed by the U.S. Court of Appeals for the Fourth Circuit late last year — a major obstacle to future FERC authorizations needed for MVP to finish construction.
“Absent a third vote to change policy, only the addition of a new (Democrat) Commissioner that shares Glick’s views would allow the Commission to reinterpret” the policy allowing the partial construction authorizations currently in place for MVP, according to ClearView. A new appointment to FERC “may not occur until July 1. This may potentially provide sufficient time for MVP to conclude the authorized work.”
MVP is a joint venture between EQM Midstream Partners LP, NextEra Capital Holdings Inc., Con Edison Transmission Inc., WGL Midstream and RGC Midstream LLC. The project is designed to move Marcellus and Utica shale gas from West Virginia to Virginia where it would interconnect with the Transcontinental Gas Pipe Line to target markets in the Southeast.
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