RICHMOND, Va. — Several environmental organizations have filed a petition for review of three federal permits that were just issued by the U.S. Army Corps of Engineers regarding the Mountain Valley Pipeline.
Sierra Club, the Center for Biological Diversity, West Virginia Rivers Coalition, West Virginia Highlands Conservancy, Indian Creek Watershed Association, Appalachian Voices and Chesapeake Climate Action Network filed the petition for review in the U.S. Court of Appeals for the Fourth Circuit regarding the permits, which had previously been tossed out in 2018 before being reissued last Friday.
The two petitions filed involve the Huntington and Norfolk Districts of the U.S. Army Corps of Engineers.
In 2018, the court agreed with the environmental groups that because of a state regulation, the pipeline stream crossings had to be completed within 72 hours to limit the harm that could come to the environment. Since then, the state Department of Environmental Protection (DEP) made changes to its policy and removed that stipulation.
The original permits were verified on Jan. 23, 2018, until the appellate court vacated them on Oct. 2, 2018. The Federal Energy Regulatory Commission informed the U.S. Army Corps of Engineers on Sept. 8 that the U.S. Fish and Wildlife Service accepted a biological opinion, paving the way for the permits to be verified again.
The petition involving Norfolk states that the Huntington and Pittsburgh District offices of the Corps of Engineers affirmed the NWP on Sept. 25, allowing for the pipeline project to continue within West Virginia. After that, the Norfolk District also reinstated the pipeline's authorization, according to a letter sent Friday by the U.S. Army Corps of Engineers - Norfolk District to Robert Cooper with Mountain Valley Pipeline.
The letter referenced the permit verification letter from 2018. In that letter, William T. Walker wrote that the 2018 authorization to conduct work under the nationwide permit (NWP) would be reinstated.
"Effective immediately, you may resume all activities being done in reliance upon the authorization under the NWP," the letter states. "All special conditions remain in effect. In the event court action is taken that may impact the verifications, the Corps will consider whether or not to suspend the NWP verifications pending resolution of those issues..."
In the petitions for review, Teaney wrote that they were seeking a review of the verification issued by the Huntington and Norfolk Districts.
In a motion for leave to intervene as a respondent, Mountain Valley Pipeline argues that neither the petitioners nor the Corps will adequately protect the pipeline's interest, so it is intervening in the case.
"This litigation may impair or impede MVP’s interests in two ways," George P. Sibley III, the pipeline attorney, writes in its motion. "First, if Petitioners’ challenge is successful, then the NWP 12 verification issued to MVP for the Project may be invalidated."
Second, Sibley writes, the review petition threatens an unfavorable decision with respect to the NWP 12 verification, creating an adverse precedent for MVP’s efforts with the project.
"The parties to this review proceeding do not adequately represent MVP’s interests," Sibley writes. "Clearly the Petitioners do not adequately represent MVP’s interests—they generally oppose the Project and specifically seek to invalidate the Corps’ authorization. The Corps also does not adequately represent MVP’s interests. Courts frequently recognize that governmental agencies do not adequately represent the financial interests of private intervenors, even if the intervenor would seek to defend the agency’s action."
Further, the Corps might choose litigation strategies, such as agreeing to settle or choosing not to appeal an adverse ruling in this court, that conflict with MVP’s interests, Sibley wrote.
The pipeline project is a natural gas pipeline system that goes across more than 300 miles in West Virginia and Virginia. The natural gas is from Marcellus and Utica shale production. As of June, MVP’s total project work was approximately 92 percent complete.
U.S. Court of Appeals for the Fourth Circuit case numbers: 20-2039, 20-2042
