When Pipeline Opponents Win in Court, U.S. Regulators Just Change the Rules
Opponents of the controversial Mountain Valley Pipeline (MVP) through West Virginia keep challenging the project in court. And when they win, state and federal regulators step in and change the rules, as they did in response to a recent court ruling.
A couple of weeks ago, the court blocked a key approval for the 300-mile project, determining “that the U.S. Army Corps of Engineers wrongly approved a permit that allowed MVP to temporarily dam four of West Virginia’s rivers so the pipeline can be buried beneath the streambeds,” reports the Charleston Gazette-Mail, a member of the ProPublica Local Reporting Network.
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“But rather than pausing or rethinking the project, the West Virginia Department of Environmental Protection has already been rewriting the state construction standards for pipeline river crossings that prompted the appeals court to block the plan,” the Gazette-Mail notes. “Once that happens, MVP will apply for a new Clean Water Act permit, which it expects to secure in early 2019.”
And that kind of redo is apparently a feature, not a bug, in recent pipeline decision-making in the state. An investigation by the Gazette-Mail and ProPublica “found that, over the past two years, federal and state agencies tasked with enforcing the nation’s environmental laws have moved repeatedly to clear roadblocks and expedite the pipeline, even changing the rules at times to ease the project’s approvals,” write reporters Ken Ward Jr. and Kate Mishkin.
The latest ruling involved four significant West Virginia Rivers—the Elk, Greenbrier, Meadow, and Gauley—each of which would have to be dammed and excavated, sometimes with blasting, to bury the 42-inch pipeline. “If the construction isn’t handled properly, sediment can increase in the water, oxygen can decrease, and aquatic habitat can be harmed,” the Gazette-Mail reports. “Because of those concerns, state officials put in place a 72-hour limit for completing these kinds of stream crossings when they approved the use of a streamlined Corps review process that MVP used.”
The Army Corps approved the permit, even though MVP said it would take four to six weeks to complete the work.
That prompted a first, successful lawsuit from the U.S. Sierra Club, the West Virginia Rivers Coalition, and other groups. In response, West Virginia Governor Jim Justice said the state Department of Environmental Protection would “continue to monitor these proceedings closely to determine what role the state may play in expediting the construction of this pipeline.”
The Army Corps rewrote its initial approval to waive the 72-hour limit. So opponents sued again, and won again.
“The stakes are high for West Virginia’s natural gas industry, which is booming and needs pipelines to move its product to East Coast and Southern cities” from Marcellus shale fields, the Gazette-Mail explains. “The issues also loom large for state residents who worry that West Virginia’s drive to encourage natural gas growth poses threats to the environment and their communities.”
Project developers Mountain Valley LLC and Equitrans LLP say the MVP’s cost has increased from US$3.7 to $4.6 billion and blame half of the total on litigation-related delays. But despite fierce local opposition, they still expect to complete the project by the last quarter of 2019.
“MVP is committed to the safety of its communities, to the preservation and protection of the environment, and to the continued responsible construction of this important natural gas infrastructure project that will serve homes and business in the mid-Atlantic and Southeast United States,” said spokesperson Natalie Cox.
The Gazette-Mail/ProPublica investigation also traces the role of the U.S. Federal Energy Regulatory Commission in trying to tip the scales in favour of the project.
Bloomberg describes the latest court setback for the project as unexpected, noting that shares in EQT Midstream Partners LP, which will operate the pipeline once it’s complete, fell 2% on the news. Bloomberg Intelligence analyst Brandon Barnes called the decision “a huge blow to the project”. ClearView Energy Partners Managing Director Christi Tezak said policy and legal analysts found it shocking after the same court lifted a previous stay on the same permit.
But Height Securities LLC analyst Katie Bays said the legal setback was not likely a “catastrophe” for the project, “despite its suddenness and scope”. She added that “the most significant impact of the decision will be uncertainty” while the company looks at changing its construction methods and whether that will lead to a further increase in project costs.