The embattled Mountain Valley Pipeline LLC (MVP) has notched a mark in the win column as the U.S. Court of Appeals for the District of Columbia (DC) Circuit this week denied a series of petitions seeking to revisit the project’s FERC certificate.
A judgment handed down Tuesday rejected a number of arguments that the petitioners, which include Appalachian Voices, the Chesapeake Climate Action Network and the Sierra Club, had brought before the court in an attempt to overrule the Federal Energy Regulatory Commission’s October 2017 certificate order.
Notably, the DC court upheld FERC’s approach to assessing the project’s potential climate impacts.
“Petitioners claim that FERC erred” by concluding that downstream greenhouse gas (GHG) emissions “are not reasonably foreseeable indirect effects of the project,” the court wrote. “We need not consider that argument, however, because even if petitioners are correct, FERC provided an estimate of the upper bound of emissions resulting from end-use combustion, and it gave several reasons why it believed petitioners’ preferred metric, the Social Cost of Carbon tool, is not an appropriate measure of project-level climate change impacts and their significance” under the National Environmental Policy Act (NEPA) and the Natural Gas Act (NGA).
In recent years, the Commission has debated its approach to assessing climate change impacts during natural gas infrastructure reviews, with Democrats Cheryl LaFleur and Richard Glick urging more detailed analyses of GHG emissions.
LaFleur and Glick expressed support for incorporating more robust methodologies such as the Social Cost of Carbon when they dissented in an order last June that denied challenges brought against the MVP certificate.
In Tuesday’s judgment, the court found that the climate analysis included in the MVP certificate is “all that is required for NEPA purposes...Not only do petitioners offer no alternative to the Social Cost of Carbon tool for assessing the incremental climate change impacts of downstream greenhouse gas emissions,” but the opening brief also fails to address FERC’s rationale for not using the tool in its analysis.
Weighing in on another Commission issue, the court also upheld FERC’s needs analysis, concluding that the long-term precedent agreements covering 100% of the project capacity offered “substantial evidence” of the market need for MVP.
In their dissenting opinions last year, both Glick and LaFleur questioned FERC’s needs analysis for MVP. LaFleur had argued that the specific circumstances surrounding MVP, particularly the similarities between MVP and the proposed Atlantic Coast Pipeline, merited a regional review or consideration of a “merged system/one-pipe alternative” to reduce environmental impacts. Glick argued that precedent agreements alone may not always adequately prove the need for a project when struck between affiliated entities.
Also in Tuesday’s judgments, several common arguments brought by challengers failed to gain any traction with the court. MVP’s eminent domain authority was upheld, granted through its FERC certificate, and the court sided with FERC on other challenges related to its actions under NEPA and the National Historic Preservation Act.
MVP, a 300-mile, 2 Bcf/d greenfield pipeline designed to move Appalachian natural gas to markets in the Southeast and Mid-Atlantic via an interconnect with the Transcontinental Gas Pipe Line in southwestern Virginia, still faces significant legal hurdles.
Virginia officials recently filed a lawsuit against the project for alleged environmental violations that occurred during construction in various counties. Virginia Attorney General Mark Herring and the state Department of Environmental Quality (DEQ) alleged that MVP violated environmental laws and the state’s Section 401 Water Quality Certification issued under the federal Clean Water Act. Seeking the “maximum allowable civil penalties” and a court order to force the project into compliance, the state noted that many of the violations occurred during heavy rainfall last year.
In its annual report filed with the U.S. Securities and Exchange Commission, lead project sponsor Equitrans Midstream Corp. said the MVP joint venture received a letter last month from the U.S. Attorney’s Office for the Western District of Virginia that it is investigating potential criminal and civil violations of the Clean Water Act. The Environmental Protection Agency is assisting, it said.
Meanwhile, the U.S. Court of Appeals for the Fourth Circuit last year vacated the U.S. Forest Service and Bureau of Land Management's decision to allow MVP to cross a 3.5 mile segment of the Jefferson National Forest in Giles and Montgomery counties, VA, and Monroe County, WV. A Fourth Circuit decision to vacate the project’s Nationwide Permit 12, issued by the U.S. Army Corps of Engineers, also resulted in MVP losing its water crossing authority.