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Mountain Valley Pipeline takes another hit in court as 4th Circuit strikes species authorization


Court finds FWS failed to consider environmental context

Says agency neglected climate change considerations

  • Author
  • Maya Weber
  • Editor
  • Gary Gentile
  • Commodity
  • Natural Gas

The 4th US Circuit Court of Appeals delivered another blow to the 304-mile, 2 Bcf/d Mountain Valley Pipeline, invalidating the US Fish and Wildlife Service's Endangered Species Act authorization for the natural gas project for a second time.

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The ruling adds another layer of legal complication for the project that would add an outlet for Appalachian Basin production, after the court's Feb. 2 ruling that struck authorization for the pipeline to cross the Jefferson National Forest.

A three-judge panel Feb. 3 agreed with environmental group petitioners that FWS failed to consider the project's environmental context while analyzing impacts on two species of endangered freshwater fish, the Roanoke logperch and the candy darter. It struck the biological opinion and incidental take statement, a document that sets out allowed impacts to the species, and remanded them to the agency.

The ruling said FWS failed to adequately evaluate the environmental baseline condition of the two 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.

"In effect, the Fish and Wildlife Service is attempting to pass off its summary of range-wide conditions and threats as an action-area analysis" for the logperch, said the opinion, written by Judge James Wynn. Instead of acknowledging the models it relies upon may be imperfect, FWS claims they account for all potential stressors, the court said. "But these models simply do not do what the agency claims."

Climate considerations

The ruling criticized the cumulative effects analysis for all five species as occupying "less than a page" and said the biological opinion spends "one sentence discussing the impacts of climate change." FWS never explained in the biological opinion that it was relying on models to account for the effects of climate change, and instead offered after-the-fact "rationalizations," the court found. Further, a model the agency relied upon "failed to account for the one thing we know about climate change: that it will get worse over time," the court added.

Even before the ruling, analysts suggested a 2022 start of service for the project was imperiled by the earlier decision on the forest crossing.

In the decision, the court said it recognized the new ruling would further delay a mostly finished pipeline.

"[B]ut the Endangered Species Act's directive to federal agencies could not be clearer: 'halt and reverse the trend toward species extinction, whatever the cost,'" the opinion said. "On remand, the Fish and Wildlife Service should consider this mandate carefully, especially given the precarious state of the candy darter." FWS must ensure it analyzes the project against aggregate effects of everything that has led the current species status and those activities expected to affect the species in the future, the court said.

Equitrans 'committed' to project

Equitrans Midstream in a statement said it was "taking time to thoroughly review" the decision on the endangered species authorizations and evaluating next steps regarding the biological opinion.

"We remain committed to completing the MVP project and believe the concerns associated with MVP's biological opinion can be addressed by the agency," it said in a statement.

Petitioners included a coalition of environmental groups represented by Sierra Club and Appalachian Mountain Advocates.

Sierra Club Senior Director of Energy Campaigns Kelly Sheehan said now that three more key agencies have been sent to the drawing board after failing analyze MVP's "harmful impacts," the matter is up to the current administration.

"Now, the Biden administration must fulfill the commitments it has made on climate and environmental justice by taking a meaningful, thorough review of this project and its permitting," she said. "When they do, they will see the science is clear: MVP is not compatible with a healthy planet and livable communities. MVP must not move forward."