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Lawsuits mount against Northeast natural gas pipeline projects


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Lawsuits mount against Northeast natural gas pipeline projects

The EQT Midstream Partners LP-led, 2-Bcf/d Mountain Valley pipeline project faces litigation over a U.S. Army Corps of Engineers water crossing permit, as the tide of lawsuits continues to swell against large Northeast natural gas pipeline projects approved by the Federal Energy Regulatory Commission.

In the latest action, Appalachian Mountain Advocates appealed to the U.S. Court of Appeals for the 4th Circuit on behalf of a coalition of groups that includes the Sierra Club, challenging the use of a nationwide permit for the project. They contend the permit was improperly issued because such a one-size-fits-all approach can only be used when a state has done a thorough water quality analysis.

In this case, the groups contend that because West Virginia waived its right to do that, the Army Corps cannot legally issue a Clean Water Act Section 404 permit.

Since FERC in October 2017 voted 2-1 to approve the 300-mile Mountain Valley project and the Dominion Energy Inc.-led, 600-mile, 1.5-Bcf/d Atlantic Coast Pipeline, multiple lawsuits have targeted those projects, which face opposition from environmental groups, as well as in some cases landowners and municipalities.

FERC orders and federal and state permits targeted

Lawsuits target the FERC certificate orders, use of eminent domain authority, U.S. Forest Service permits and state water quality permits, to name a few.

Those projects are not alone in facing headwinds. In a sign of litigation to come, the 170-mile, 2.7-Bcf/d Mountaineer XPress project by Columbia Gas Transmission LLC in West Virginia is facing a request for rehearing and motion for stay from environmental groups at FERC, despite a lower profile than projects further east. The 118-mile PennEast Pipeline Co. LLC project in Pennsylvania and New Jersey has been flooded with requests for rehearing and faces a lawsuit related to exercising eminent domain.

Following the restoration of the commission' quorum in August 2017, FERC has issued certificate orders approving more than 10 Bcf/d of incremental pipeline capacity, much of it greenfield, in the Northeast region alone.

Separately, amid Mountain Valley pipeline's legal tussle in federal district court over gaining access to about 225 private properties in Virginia, 16 property owners on Feb. 12 filed an interlocutory appeal in the U.S. Court of Appeals for the 4th Circuit. Appalachian Mountain Advocates was among the those filing on behalf of those landowners.

On Jan. 31, the U.S. District Court for the Western District of Virginia conditionally granted the operator's request for immediate possession of parts of the properties but held physical access in abeyance until Mountain Valley Pipeline "can provide a more fulsome basis on which the court can assure just compensation will be paid." (U.S. District Court for the Western District of Virginia docket 7:17-cv-00492)

This appeared to be the first time a district court has cited insufficient valuation evidence as the basis for refusing a pipeline company's immediate possession motion, Hunton & Williams Partner Arthur Schmalz wrote in an article on the law firm's website.

Mountain Valley still planning late 2018 in-service

Natalie Cox, a spokeswoman for EQT, said the project continues to target a late-2018 in-service date. "MVP has already submitted our plan to the court to provide them with the required additional information," she said.

The January court order came as Mountain Valley was working up to a deadline involving tree cutting in late March. Several analysts suggested that because Mountain Valley already has easements for the vast majority of parcels, it still may be able to meet that schedule.

The pipeline project received two notices to proceed from FERC this week: one covering 12 miles of pipeline and temporary staging areas and access roads in Virginia, and another covering about 13 miles and temporary workspaces in Monroe County, W.Va. (FERC docket CP16-10)