Dealing a blow to Mountain Valley Pipeline LLC’s (MVP) expectations for a timely conclusion to the drawn-out regulatory saga, a federal court has once again struck down crucial permitting for the natural gas conduit’s crossing of the Jefferson National Forest.
The U.S. Court of Appeals for the Fourth Circuit last Tuesday (Jan. 25) vacated and remanded key authorizations issued to MVP by the U.S. Forest Service and the Bureau of Land Management (BLM). The approvals would enable the 303-mile, 2 million Dth/d pipeline to cross a 3.5-mile stretch of national forest land along the Virginia and West Virginia border.
Partly siding with a coalition of environmental groups challenging the project, the Fourth Circuit found that the federal agencies erred by failing to account for data showing the erosion impacts of the project and by “prematurely” authorizing the conventional bore method for four stream crossings within the national forest. The agencies also failed to comply with a 2012 forest planning rule, the court found.
In an order explaining the court’s decision, Circuit Judge Stephanie Thacker criticized the agencies for not considering water quality monitoring data from the U.S. Geological Survey (USGS) showing impacts of the pipeline’s construction 15 miles outside of the Jefferson National Forest.
“The USGS data showed water turbidity values that were 20% higher downstream from the pipeline’s construction than upstream — a significant difference from the 2.1% increase in sedimentation the hydrologic analyses predicted for the Roanoke River,” Thacker wrote.
As for the stream crossings, the agencies should have waited for FERC to complete an environmental analysis of MVP’s plans to switch to a conventional bore method for stream crossings, according to the court.
Even though the Federal Energy Regulatory Commission approved “the use of the conventional bore method for the stream crossings inside the Jefferson National Forest, the Forest Service and the BLM, in deciding whether to approve the pipeline’s route over those lands, would surely benefit from FERC’s environmental analysis of the use of the conventional bore method for other stream crossings outside the Jefferson National Forest,” Thacker wrote.
“As a result, the Forest Service and the BLM improperly approved the use of the conventional bore method for the four streams in the Jefferson National Forest without first considering FERC’s analysis.”
The latest court action marks the second time that the Fourth Circuit has struck down MVP’s federal permitting for its planned route through national forest lands. The previous approvals were vacated in July 2018. Revised permitting was issued after the Forest Service concluded a supplemental environmental review in late 2020.
Analysts characterized the latest Fourth Circuit ruling as a clear setback for MVP, which first received its FERC certificate in 2017 but has been dogged by legal and regulatory setbacks that have dragged out the construction process.
Project sponsors, including EQM Midstream Partners, which plans to operate the pipeline, have said MVP is close to 94% complete, with more than half of the right-of-way fully restored. Even so, for project proponents, MVP’s in-service date remains frustratingly elusive.
“In our view, these permits needed to be upheld on appeal in order for MVP to complete construction as planned,” analysts at ClearView Energy Partners LLC told clients. “That now appears off the table given the need for the agencies to revisit the evidence presented by petitioners in a more substantive fashion.”
Similarly, Wood Mackenzie analyst Colette Breshears estimated that the start of service would likely slip to 2023 on the latest developments.
“This delay comes on the heels of increasing rig activity and promising prices in the Appalachian Basin that indicated strong production growth year/year to fill the new capacity,” Breshears said.
MVP is a joint venture of EQM Midstream, NextEra Capital Holdings Inc., Con Edison Transmission Inc., WGL Midstream and RGC Midstream LLC. The pipeline is designed to transport Marcellus and Utica shale gas from West Virginia to an interconnect with the Transcontinental Gas Pipe Line in southwestern Virginia.
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