Full 4th Circuit leaves hurdle in place for 2 Bcf/d Mountain Valley gas project

The 4th US Circuit Court of Appeals has left in place a Jan. 25 decision that invalidated federal authorizations allowing the 304-mile, 2 Bcf/d Mountain Valley Pipeline to cross the Jefferson National Forest.

Acting March 25, the court denied MVP's request that the full 4th Circuit reverse a decision by a three-judge panel of the court that set back the timeline for the already stalled project.

"As previously stated, we continue to evaluate the best path forward for the project and expect to provide updated project guidance once the full evaluation is complete," said Natalie Cox, a spokeswoman for MVP, in an email March 29. The company could still appeal the ruling to the US Supreme Court or seek to have federal agencies reissue the authorizations.

A three-judge panel of the 4th Circuit court Jan. 25 found that the US Forest Service and US Bureau of Land Management failed to address evidence that the pipeline's real-world sediment and erosion impacts indicated that the results of modeling predictions were unreasonable.

The court also found that agencies failed to analyze environmental impacts of using the conventional bore method to cross four streams in the forest before approving use of the method. And finally, the panel found the Forest Service failed to comply with its own 2012 planning rule (Wild Virginia , et al., v. US Forest Service et al., 21-1039).

The court's March 25 order said the petition for rehearing was circulated to the court but no judge requested a poll, leading the court to deny the petition.

In asking the court to reverse two recent rulings, the pipeline developer had argued the 4th Circuit was second-guessing agencies, rather than applying well-settled approaches for giving deference to expert agencies on complex matters.

It called the consequences "grave," saying MVP and the federal agencies are trapped in a "perpetual loop" to redo work, knowing the revised analyses will receive "inappropriately aggressive review" by the court.

In addition to the forest crossing ruling, a panel of the 4th Circuit Feb. 3 found the US Fish and Wildlife Service failed to adequately evaluate the environmental baseline condition of two vulnerable fish species within the action area of the pipeline, as well as the cumulative effects on the species.

Further, FWS neglected to fully consider impacts of climate change, it said (Appalachian Voices, et al., v. US Department of Interior, et al., 20-2159). MVP has also sought rehearing by the full fourth circuit in that case as well.

The rulings threw into question the timing and prospects for the project, with Equitrans Midstream, the lead developer in the joint venture for the pipeline, saying it was no longer targeting a summer 2022 in-service date and that it was continuing to evaluate options for the related 75-mile, 375,000 Dt/d MVP Southgate expansion project.

Two joint-venture partners, NextEra Energy Resources and Con Edison Transmission, also have taken significant impairments related to the project.