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Court nixes stay for Mountain Valley pipeline; new suit filed on Atlantic Coast

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Court nixes stay for Mountain Valley pipeline; new suit filed on Atlantic Coast

A federal appeals court rejected motions by environmental groups to stay work on the 301-mile, 2-Bcf/d Mountain Valley Pipeline while the court considers their litigation over the Federal Energy Regulatory Commission's certificate order authorizing the natural gas project in West Virginia and Virginia.

The action by the U.S. Appeals Court for the District of Columbia Circuit on Feb. 2 came as FERC recently cleared the $3.7 billion EQT Corp.-led project to begin partial construction, allowing work to start on three compressor stations and certain yards and access roads in West Virginia. (FERC docket CP15-554)

The D.C. Circuit also denied a petition for a writ of mandamus in which the environmental groups sought to convince the court to consider their underlying case now so as to preserve the court's jurisdiction.

Ordinarily, challenges to natural gas certificate orders granted by FERC are heard by federal appeals courts after FERC issues a final decision on rehearing.

Groups cited tolling orders in seeking earlier review

The environmentalists suggested the federal appeals court should weigh-in sooner, on the grounds that the FERC practice of extending its decisions on rehearing for months by issuing tolling orders undercuts the court's jurisdiction in reviewing orders and alters the status quo because large swaths of trees will be cut, property will be taken and construction will occur before the FERC order can be scrutinized.

In their pitch to the D.C. Circuit, Appalachian Voices, the Sierra Club and others contended that FERC has used tolling orders in 99% of its gas pipeline orders in the last eight years "to shield itself from timely judicial scrutiny."

They argued that a stay was needed because FERC had not adequately supported a finding that property-taking for the project met constitutional requirements that it serves the public use. (U.S. Appeals Court for the D.C. Circuit docket 17-1271)

The court in its brief order found, without elaboration, "the petitioners have not shown a clear and indisputable right for the extraordinary remedy of mandamus," pointing to a D.C. Circuit precedent in the case involving the U.S. Department of Energy.

In addition, the court said the petitioners "have not satisfied the stringent requirements for a stay pending court review." It referred the motions to dismiss the case to a merits panel. FERC has sought to dismiss the petitions as premature, saying the circuit court has held that it has jurisdiction to review only final orders of the commission and the certificate orders are not final.

The environmental groups involved in the litigation included Appalachian Voices, Chesapeake Climate Action Network, the Sierra Club, West Virginia Rivers Coalition and others.

The court's action does not entirely put the project in the clear. Environmentalists also have a challenge pending to Virginia's Clean Water Act Section 401 authorization for Mountain Valley, in which a stay request could also be filed.

Groups challenge Forest Service permit for Atlantic Coast

Separately, the Southern Environmental Law Center and the Sierra Club put forward another lawsuit on behalf of environmental groups in the U.S. Appeals Court for the 4th Circuit challenging the $5.1 billion Dominion Energy Inc.-led Atlantic Coast pipeline project. In this case, they challenged a U.S. Forest Service decision that allowed the project to run through national forest land.

"Political pressure forced approval of this boondoggle through steep slopes and landslide-prone areas on a treasured national forest," Southern Environmental Law Center Senior Attorney D.J. Gerken said. "Forest Service staff warned of the impacts this project would have, but the agency ignored them and granted special exceptions to let these pipeline developers get their way."

The groups argued that the Forest Service should not allow work on the forest lands "until this project is fully permitted."

The Atlantic Coast Pipeline also faces environmentalist suits challenging FERC certificate orders, Virginia's conditional water quality certification for the project, the U.S. Fish and Wildlife Service's biological opinion and incidental take statement for the project, and the National Park Service's right of way permit for the project.

Maya Weber is a reporter for S&P Global Platts, which, like S&P Global Market Intelligence, is owned by S&P Global Inc.