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Court vacates Forest Service, BLM decisions for Mountain Valley gas pipeline


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Court vacates Forest Service, BLM decisions for Mountain Valley gas pipeline

In another setback for the Mountain Valley gas pipeline project, the U.S. Court of Appeals for the 4th Circuit on July 27 vacated U.S. Forest Service and Bureau of Land Management decisions that allowed the pipeline to cross through national forest land.

The decision raises the prospect of further delays for the roughly 301-mile, 2 Bcf/d natural gas pipeline, which would provide an outlet for West Virginia production to downstream markets in Transcontinental Gas Pipe Line Co. LLC's Zone 5 near the Virginia-North Carolina border. While regional demand is expected to grow, Mountain Valley is one of numerous pipelines targeting deliveries to Transco's mainline, including Atlantic Sunrise, WB XPress and the Atlantic Coast Pipeline.

The project saw stream and wetlands crossings stayed by the court in June, and lead sponsor EQT Midstream Partners LP conceded July 26 that startup would be delayed until 2019. At issue in the new 4th Circuit ruling is the BLM's decision to grant a right of way for construction through federal land and the Forest Service decision to amend the management plan for the Jefferson National Forest to accommodate the pipeline. (Sierra Club v. U.S. Forest Service, 17-2399)

The court noted that Mountain Valley would be the largest pipeline of its kind to cross the Jefferson National Forest. "American citizens understandably place their trust in the Forest Service to protect and preserve this country's forests, and they deserve more than silent acquiescence to a pipeline company's justification for upending large swaths of national forestlands," it said. "Citizen's also trust the Bureau of Land Management to prevent undue degradation to public lands by following the dictates of the [Mineral Leasing Act]."

The Federal Energy Regulatory Commission granted approval for the pipeline in October 2017, and in December, the BLM issued a record of the decision granting right of way through 3.6 miles of the forest. It was undisputed that the project conflicted with aspects of the forest management plan, the court noted, and the Forest Service, in response, elected to amend the forest plan rather than deny the crossing.

The court said it found no evidence the Forest Service conducted an independent review of the sedimentation analysis in FERC's environmental impact statement, given that it adopted the EIS despite the Forest Services' prior disagreement over the level of efficacy of barriers intended to block sedimentation of waterways. "[T]here is no statement in the [Rule of Decision] explaining the Forest Service's abandonment of its earlier concerns," the court said. It found the service acted arbitrarily and capriciously and remanded the matter to the agency to explain its assent to estimates about the efficacy and percent increase in sedimentation.

Separately, the court found the BLM failed to demonstrate that alternatives to the 3.6-mile stretch through the national forest that make greater use of existing right of way were "impractical," as required under the Mineral Leasing Act. It said the BLM had not conducted that analysis because had it done so, it would have favored routes using existing rights of way unless those alternatives were impractical. Further, it found fault with changes to the forest management plan to accommodate the right of way.

The Forest Service acted arbitrarily and capriciously when it concluded that planning rule requirements for soil, water and riparian resources are directly related to the purpose of the plan amendment, according to the decision. The Forest Service is required to ensure the amendments to soil and riparian standards will comply with the National Forest Management Act and its regulations, the court said.

EQT did not immediately reply to a request for comment.

Maya Weber is a reporter for S&P Global Platts, which, like S&P Global Market Intelligence, is owned by S&P Global Inc. John McManus contributed to this article.