Two weeks after the U.S. Supreme Court ordered an appeals court to lift a temporary halt on work to finish the embattled Mountain Valley gas pipeline in Virginia and West Virginia, that Richmond, Va., court dismissed opponent group lawsuits on their merits to stop the 303-mile project. A three-judge panel admitted on Aug. 11 that the court now lacks case jurisdiction after Congress in June transferred it to another appellate court and ordered project completion in a provision added to the new debt ceiling law.
Pipeline developer Equitrans Midstream, with support from the U.S Justice Dept., congressional backers and others, had sought the dismissal.
“Armed with this new legislation enacted specifically in their favor, respondents — the federal agencies and the Mountain Valley Pipeline — moved in this court for the dismissal of the petitions. Accordingly … there is no longer a live controversy and the underlying petitions are moot,” said Judge James Wynn. “Upon consideration of the matters before us, we must grant respondents’ motions to dismiss.”
The appeals court heard oral arguments on July 27 related to two opponent lawsuits that challenged the $6.6-billion pipeline’s construction through 3.5 miles of the Jefferson National Forest in Virginia and other environmental impacts. Groups also said the project mandate in the bipartisan legislation to raise the debt ceiling was unconstitutional.
“Mountain Valley is committed to finalizing work on this critical energy infrastructure project by the end of 2023 in compliance with all approved federal and state authorizations so it can enter service,” said project spokeswoman Natalie Cox in a statement.
While previous project rulings have prevented construction since 2021 of what the developer said was the last 20 miles of the line, litigation in the last several months has particularly disrupted Mountain Valley completion and a planned extension to North Carolina, with some analysts speculating completion would be delayed until well into next year.
But Equitrans Midstream Chairman and CEO Thomas F. Karam also confirmed
the end-of-year finish on an Aug. 1 second-quarter
company results call.
Appeals Court-What's Next?
The Richmond appeals court acknowledged that the Washington, D.C. appeals court would decide debt ceiling law constitutionality as raised in the current challenges. “Here, Congress has removed our jurisdiction to hear the merits of the present petitions,” said Wynn.
In a concurring opinion, Judge Roger Gregory said Congress had undermined the Constitution “and, in the process, it has made the court an accessory to its deeds," adding that "Section 324 is a blueprint for the construction of a natural gas pipeline by legislative fiat."
But the Richmond court said it could review future challenges to permits issued for added work the pipeline pursues—after completion—and it can rule in litigation affecting other gas projects in its region.
“Congress left in place the general grant of jurisdiction to this court under the Natural Gas Act over challenges to future pipelines or other natural gas facilities in this circuit, as well as future challenges to operations of the Mountain Valley Pipeline not covered by the express terms of Section 324" of the [debt-ceiling] act,” said Wynn.
Among other responses by plaintiff groups, Jamie Williams, president of The Wilderness Society, said that Mountain Velley "will scar the integrity of Jefferson National Forest, compromise our water, increase harmful sedimentation and expose communities in its path to the potential for explosive gas leaks and other harmful impacts.”
The plaintiffs did not elaborate on how they will proceed on the cases.
However, attorneys for three Virginia landowners along the project route are revving up previous eminent domain litigation against the pipeline and the Federal Energy Regulatory Commission. In an Aug. 7 filing to the federal appeals court in Washington, D.C., which now will rule on Mountain Valley lawsuits, the landowners also are challenging whether the project's new status under the debt ceiling law still offers them constitutional protections against FERC allowing a private company authority to take their land.
Protests Rev Up
Precision Pipeline, a unit of energy contractor MasTec, and pipeline contractor Price Gregory International Inc. are building the line, which Cox told ENR would involve about a 4,500-person workforce and "hundreds" of environmental and other inspectors.
Meanwhle, two protestors were arrested Aug. 11 after locking themselves to equipment at a tree clearing pipeline work site in Roanoke County, Va., according to media reports and statements from one protest group, Appalachians Against Pipelines.
The group said it was the fourth work stoppage within four days this month at the site. Roanoke County police confirmed the protester arrests for interfering with property rights,
In a Facebook post, Appalachians Against Pipelines said that in one incident early last week, protestors occupied the site for 90 minutes, blocked delivery of several pieces of equipment and chained themselves to machines. The group said between 30 and 40 Mountain Valley workers were on site and unable to work.
"The safe construction and operation of the MVP project remains our top priority and ensuring public safety is paramount," said a Mountain Valley project statement. "We condemn illegal and dangerous tactics of individuals and groups who put themselves, crew members, and first-responders at risk by engaging in attention-seeking, criminal behavior. While we respect our opponents’ views, we sincerely hope opponents will conduct themselves in accordance with applicable laws to ensure public safety."
