Will they be built? Virginia’s contentious pipeline projects face major legal hurdles
Workers began laying portions of the Mountain Valley Pipeline in Roanoke County last year. This view shows where it will cross under the Blue Ridge Parkway. (Ned Oliver/Virginia Mercury – July 26,2018)
FLOYD — Warm weather has brought renewed activity to the Mountain Valley Pipeline in western Virginia, but the project and its equally contentious sibling, the Atlantic Coast Pipeline, still face unresolved legal and regulatory hurdles that leave their completion uncertain.
This year has seen new protests on the ground, as well as an escalation in charges against protesters.
A man who chained himself to a piece of pipeline equipment in West Virginia last month was charged with threats of terrorist acts, marking the first time a pipeline protester has been charged with a felony.
Another protester who barricaded himself inside a length of pipeline earlier this month was charged with two felonies — threats of terrorist acts and property destruction. In Elliston, Virginia, protesters have occupied tree stands since Sept. 5, 2018, with new tree-sitters periodically joining the protest, including a 44-year-old grandmother.
While protesters are placing their bodies in the way, legal and regulatory barricades related to the pipelines’ crossings of waterways, federal land and the Appalachian Trail stand in the way of completion.
The developments have pushed back construction timelines, with the Atlantic Coast Pipeline stopping work altogether after a federal court ruling in December. Officials with the Mountain Valley Pipeline have said it will be complete later this year, but, according to The Roanoke Times, at least two of the five partners in the pipeline have said in financial reports that the pipeline likely will be delayed longer.
The pipelines must obtain new authorization to cross federally managed land in Virginia and West Virginia, the Appalachian Trail and waterways along the entirety of the route. The shifting status of endangered species may also complicate the projects.
Spokespersons for MVP and from Dominion Energy, the lead partner in the Atlantic Coast Pipeline, did not respond to multiple emails requesting a statement or answers to questions for this story.
Crossing federal land and the Appalachian Trail
The Atlantic Coast and Mountain Valley pipelines both aim to take natural gas from the fracking fields of the Marcellus and Utica formations in northern Appalachia to customers on the East Coast, and perhaps beyond.
The MVP, owned by EQM Midstream Partners and a consortium of natural gas transportation companies, runs 303 miles from northern West Virginia to a compressor station north of Danville in Pittsylvania County. The related MVP Southgate project would extend the pipeline another 73 miles into North Carolina.
The Atlantic Coast Pipeline also begins in West Virginia but runs 600 miles along a route north of the MVP and eventually to eastern North Carolina, with a spur to Chesapeake. The pipeline is backed by four utilities: Dominion Energy, Duke Energy, Piedmont Natural Gas and Southern Company Gas.
Both pipelines were granted permits to cross federal land after the Federal Energy Regulatory Commission issued Certificates of Public Convenience and Necessity for both projects.
However, last summer the U.S. Court of Appeals for the 4th Circuit in Richmond vacated approval for a right of way that MVP received from the Bureau of Land Management, as well as an accompanying decision by the U.S. Forest Service to accommodate the crossing. The ACP’s crossing of national forest was similarly blocked by the 4th Circuit in a December ruling.
In both cases, the court found the agencies had expressed serious concerns about the environmental impacts during its initial review of the applications, only to flip-flop and arbitrarily approve the crossings without addressing those outstanding issues.
In the MVP ruling, the court 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. Citizens also trust in the Bureau of Land Management to prevent undue degradation to public lands by following the dictates of the MLA,” the Mineral Leasing Act.
The court’s ruling on the Atlantic Coast Pipeline, known as the “Lorax decision” for its reference to the green-themed Dr. Seuss book, said that a review of the record “leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources.
“This conclusion is particularly informed by the Forest Service’s serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.”
In late April, Dominion Energy informed the Forest Service it wished to renew consideration for the Atlantic Coast Pipeline project to cross the Monongahela and George Washington national forests, according to Forest Service spokesman Jon McMillan. The pipeline and agency held a pre-application meeting on May 23.
The MVP has likewise informed the BLM that it wants the agency to reconsider its right-of-way application, according to Francis Piccoli, spokesman for the BLM’s Eastern States office.
In the ACP ruling, the court held that the Forest Service could not legally grant the pipeline a right of way to cross the Appalachian Trail because the Mineral Leasing Act explicitly designates the trail as land in the National Park System. That has sweeping ramifications for both pipelines.
Dominion has appealed the ruling to the U.S. Supreme Court, which has not yet decided whether it will hear the case. The U.S. solicitor general recently asked for extra time on the appeal to file a petition in support of Dominion.
Unless the Supreme Court overturns it, the 4th Circuit’s ruling holds important implications for both pipelines, because the rights of way to cross the trail on federal land also can’t be granted by the National Park Service alone. Instead, the projects would have to look for a legislative fix from Congress.
The politics of crossing national forests
That leaves the pipeline companies with a choice between getting crossings approved by both houses of Congress and signed by the president in a tempestuous political climate, or to re-route around the national forests through private or state land, which does not require approval by the park service or Congress.
The second approach looks easier for the Mountain Valley Pipeline than for the Atlantic Coast Pipeline because the former included in its filings an alternative route around the national forest. Dominion did not.
“Dominion bet its project on one crossing point for the Appalachian Trail,” said Greg Buppert, a lawyer at the Southern Environmental Law Center. “It never looked at alternatives that cross in a different place, and therefore never got off of national forest land.”
On May 16, SELC and more than 50 other organizations sent a letter calling on Virginia’s two Democratic senators not to approve any legislation granting a crossing of the trail.
“We’re not even talking about a project that is something in the public interest of Virginians, we’re talking about a project that is over budget, overdue and as time passes we can see is unneeded to meet energy demands,” said Kate Wofford, executive director of the Alliance for the Shenandoah Valley, in a news release about the letter.
“Why should lawmakers, or anyone bend over backward for this project to get built?”
U.S. Rep. Morgan Griffith, R-Salem, who sits on the House Committee on Energy and Commerce, said that he has indeed been contacted by parties about facilitating pipeline crossings of the trail. However, in an emailed statement, the congressman was noncommittal.
“I would have to see legislative language before committing to a vote,” Griffith wrote.
“Having the entire Congress voting on a regional matter is questionable. If that were the policy, our region would have to get permission from New York, California, and Hawaii in the event it wanted an easement. The whole system of approving pipelines needs to be reformed, which is why I have introduced legislation to conduct a full review of the process.”
Meanwhile, the Mountain Valley Pipeline hasn’t taken public action in response to the court of appeals ruling. Anti-pipeline activists speculate that MVP could try to re-route around national forest property, which would involve another round of negotiation with land owners or eminent domain proceedings.
The Monroe County Commission in West Virginia sent a letter to FERC in May seeking to find out whether the “Columbia Gas of Virginia Peters Mountain Variation” is under consideration by MVP as an alternative to crossing the Appalachian Trail on national forest. The letter requested a public review and comment period if so.
Another rumor among activists holds that MVP may be trying to work out a land swap with the Forest Service. Mountain Valley Pipeline officials did not respond to an emailed list of questions about the ruling and its response.
Diana Christopulos, an anti-pipeline activist and past president of the Roanoke Appalachian Trail Club, said the current crossing “is a poster child for an ill-conceived location for a pipeline crossing. The Forest Service has identified both sides as high hazard areas because of the steep slopes, landslide-prone soil and its location literally in the middle of the Giles County seismic zone.”
A third major issue that has slowed down the pipelines relates to federal approval for the pipelines to cross waterways along the route. Both require approvals from the federal and state governments under sections 404 and 401 of the Clean Water Act, which are separate but related.
In Virginia, the 401 permits have been resolved, with the 4th Circuit affirming the certifications for both pipelines, and the Virginia State Water Control board declining to revoke them, even in the face of numerous water quality violations as a result of Mountain Valley Pipeline construction. Section 404 has proven more problematic.
The U.S. Army Corps of Engineers initially approved 404 permits for both pipelines under Nationwide Permit 12, which applies to utilities that require stream crossings. The nationwide permit, however, is also tied to state 401 certifications.
In 2017, West Virginia had applied conditions to its certifications of Nationwide Permit 12, including that pipelines greater than 36 inches in diameter receive individual water quality certifications from the state, that construction of all stream crossings be completed in fewer than 72 hours and a prohibition on any structures that impeded the movement of fish.
The pipelines’ inability to meet those conditions led the U.S. Court of Appeals for the 4th Circuit to vacate the Huntington District’s authorization, which led to the suspension of authorizations by other districts based on another corps requirement. That meant the pipelines lost their authorization to cross waterways along their entire lengths, which in MVP’s case extended to three Army Corps districts and in ACP’s case four.
Although West Virginia has modified those water quality conditions to open the door for the pipelines, the revised regulations still need to be approved by the Army Corps of Engineers and Environmental Protection Agency. That hasn’t happened yet.
Endangered species and what comes next
The question of harm to endangered species along the route still looms, although not yet as large as the national forest, Appalachian Trail and waterway crossings.
In April, the U.S. Fish and Wildlife Service sent a letter to FERC with a list of questions and informational needs to determine how to best administer the Endangered Species Act along the Mountain Valley Pipeline route. In May, the Sierra Club got involved with a letter to the USFWS, prompting a four-page response by the pipeline asserting that its construction “poses no rise of jeopardizing any listed species or any species proposed for listing.”
The Atlantic Coast Pipeline also has faced legal headaches involving four threatened species: the rusty patched bumble bee, the clubshell (a mussel), the Indiana bat and the Madison cave isopod (a freshwater crustacean), with arguments before the 4th Circuit Court of Appeals occurring earlier this month.
The short-term result of these regulatory and legal obstacles has been to delay construction of the pipelines. That lost time represents extra cost and lengthy delays for the pipeline companies and the investors funding them. If the delays extend into 2020, they could have even more severe consequences. For example, the estimated cost of the Atlantic Coast Pipeline has ballooned to $7.5 billion from about $5.5 billion.
“If they can’t meet the 2019 in-service targets, three things will rear their heads,” said Derek Teaney, a lawyer with the anti-pipeline Appalachian Mountain Advocates. “First, contracts with shippers that say the in-service date can’t be later than June 1, 2020. After that, the shippers can walk away, although they probably won’t. Second, the FERC certificate has in-service deadline of October 2020.
“Third, and this is important: Are they going to be able to get the money to pay for these cost overruns? Is the financing going go continue to come in? If costs continue to go up, can they go out and get more loans? Will lenders continue to fund them?”
Another potential problem is that the market may not need two natural gas transmission lines, if it needs any at all. If only one can survive, who has the advantage?
The Atlantic Coast Pipeline faces steeper legal challenges due to its reliance on crossing the Appalachian Trail in national forest, but it has a more straight-forward business model, since the utilities who are its end users also own the pipeline, while the companies behind MVP mostly operate as middle men.
The ownership/end user structure of the ACP, however, has also led to criticism of the project as an exercise in enriching energy company shareholders at the expense of utility ratepayers.
If Dominion’s Supreme Court appeal isn’t taken up, “some analysts think Dominion could cancel the pipeline,” Reuters reported earlier this month.
The path forward for the pipelines may eventually surmount the obstacles in their way, but the moves required to navigate them could well spark more litigation, likely ensuring that the road to completion will be as hard-fought in the courts as it is among the protesters on the ground.
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