Federal court (again) overturns (another) Mountain Valley Pipeline permit

4th Circuit vacates Fish & Wildlife approval over endangered species impacts

By: - February 3, 2022 12:10 pm

Workers had cleared trees along the path of the Mountain Valley Pipeline in Roanoke County. (Ned Oliver/Virginia Mercury – July 26, 2018)

The hits keep coming for the embattled Mountain Valley Pipeline, with the Richmond-based U.S. 4th Circuit Court of Appeals overturning yet another key project approval this week, this time because of impacts to two endangered fish species. 

The court in an opinion filed Thursday determined that the U.S. Fish and Wildlife Service had erred in a September 2020 finding that Mountain Valley was unlikely to jeopardize several endangered species. 

“We recognize that this decision will further delay the completion of an already mostly finished pipeline, but the Endangered Species Act’s directive to federal agencies could not be clearer: ‘halt and reverse the trend toward species extinction, whatever the cost,’” Judge James Wynn wrote in the 4th Circuit’s opinion. 

Mountain Valley Pipeline spokesperson Natalie Cox said the company is evaluating the decision but is “disappointed” in it. 

“For eight years, the MVP project team has worked diligently with state and federal regulators to ensure this important infrastructure project is built and operated to the highest levels of safety and environmental standards,” she wrote in an email. “The MVP has undergone an unprecedented level of review, and rigorous analysis has repeatedly demonstrated that this project can in fact be built safely and responsibly.” 

The case, which was brought by a consortium of environmental groups including Appalachian Voices, Wild Virginia, the Sierra Club and the Center for Biological Diversity, marks the second time Mountain Valley’s Fish and Wildlife permit has been called into question by the courts. 

The ruling is also the third blow the pipeline has received in just over a week. On Jan. 25, the 4th Circuit yanked the project’s Forest Service and Bureau of Land Management approvals, finding that those agencies’ evaluations of impacts had been inadequate. 

In this week’s decision, the court again said it had found deficiencies in federal agency reviews, this time pointing to flaws in the Fish and Wildlife Service’s assessment of the current condition of two endangered fish species, the Roanoke logperch and candy darter, as well as ongoing impacts to the remaining populations. It also accused the agency of failing to properly evaluate the impacts of climate change, which is mentioned in only one sentence of the biological opinion. 

Scientists have recorded seven existing populations of the Roanoke logperch, which is found in four Virginia and North Carolina river systems. Of those, the Roanoke River population is considered especially notable, with 15 percent expected to be impacted by the pipeline. 

The candy darter is found in 18 fragmented populations in Virginia and West Virginia. One 2018 species status report by the Fish and Wildlife Service found that it is at risk of going totally extinct over the next 25 years. The 4th Circuit noted that two of the populations that will be impacted by Mountain Valley are considered to be “among the most genetically pure populations” remaining and “essential to the recovery of the species.”

Both species struggle to survive in waters with heavy loads of sediment. 

The court found that because of the deficiencies in Fish and Wildlife’s analysis, the agency’s determination that the pipeline would not jeopardize the candy darter or the Roanoke logperch was “arbitrary.” Judge Wynn’s opinion orders that the analysis be redone but warns that federal agencies may not take any actions that “deepen” the jeopardy populations face. 

“Put differently, if a species is already speeding toward the extinction cliff, an agency may not press on the gas,” he wrote. “We urge the Fish and Wildlife Service to consider this directive carefully while reassessing impacts to the two endangered fish at issue, especially the apparently not-long-for-this-world candy darter.” 

Environmental groups celebrated the decision Thursday and urged the developers to cancel the project, which is billions over budget and several years behind schedule

Three more key federal agencies have been sent back to the drawing board after failing to analyze MVP’s harmful impacts,” said Sierra Club Senior Director of Energy Campaigns Kelly Sheehan in a statement. “The previous administration’s rushed, shoddy permitting put the entire project in question.”

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Sarah Vogelsong
Sarah Vogelsong

Sarah is Editor-in-Chief of the Mercury and previously its environment and energy reporter. She has worked for multiple Virginia and regional publications, including Chesapeake Bay Journal, The Progress-Index and The Caroline Progress. Her reporting has won awards from groups such as the Society of Environmental Journalists and Virginia Press Association, and she is an alumna of the Columbia Energy Journalism Initiative and Metcalf Institute Science Immersion Workshop for Journalists. She is a graduate of the College of William and Mary. Contact her at [email protected]

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