Apr. 6—Progress on the Mountain Valley Pipeline in West Virginia was dealt another blow this week as a Richmond, Va., appeals court vacated a state water permit needed by developers to restart construction.

The 4th U.S. Circuit Court of Appeals decision was unanimous, saying the water quality certification permit for the natural gas pipeline to go through water crossings that had been issued by the West Virginia Department of Environmental Protection (DEP) was "deficient."

Chief Judge Roger Gregory said in a statement that the DEP did acknowledge MVP's "checkered past" in meeting environmental regulations, but "none of the department's explanations either in this litigation or—more importantly—in the certification itself reflect its reasonable assurance that MVP's past violations will not be an impediment to its compliance with state water quality standards."

The 303-mile, 42-inch diameter natural gas pipeline, slated to to run from North Central West Virginia to Chatham, Va., was initially set to be operational by late 2018 at a cost of about $3.2 billion.

But protests and litigation over federal permitting has delayed the MVP, which is about 90 percent complete and is now projected to cost $6.2 billion.

The same Richmond court has also previously ruled against a federal permit to cross natural forest land, so a 3.5-mile stretch of the pipeline that crosses Peters Mountain in Monroe County, W.Va. into Giles County, Va. remains incomplete.

However, the appeals court last week gave the go-ahead for the MVP to proceed with water crossings in Virginia, saying the state Department of Environmental Quality completed steps to address issues filed by dissenters and presented a "final fact sheet" for making the recommendation to approve the permit.

In West Virginia, Appalachian Mountain Advocates brought the litigation to stop the permitting on stream-crossing, and was supported by the Sierra Club, Appalachian Voices, Chesapeake Climate Action Network, West Virginia Rivers Coalition, West Virginia Highlands Conservancy, and Indian Creek Watershed Association.

The DEP granted the approval for water crossings in the state in December 2021, a decision that prompted the litigation.

Sen Joe Manchin, D-W.Va., was quick to react to the Richmond court's decision.

"It is infuriating to see the same 4th Circuit Court panel deal yet another setback for the Mountain Valley Pipeline project and once again side with activists who seem hell-bent on killing any fossil energy that will make our country energy independent and secure," Manchin said. "This pipeline is more than 90 percent constructed with 283 miles already laid, and once through the red tape can bring an additional 2 billion cubic feet per day of natural gas onto the market within months."

Manchin said the project has been through three rounds of water quality permitting "but activist groups continue to litigate the last 20 miles, standing in the way of restoring land to its natural beauty, getting more product to market to bolster our energy security and bring down prices, and allowing West Virginians to benefit from the natural resources they own."

"As OPEC and Putin continue to manipulate energy to suit their agendas, the United States must step up to the plate to get more of our abundant natural resources — which are among the cleanest produced in the world — to market, both for our own energy security and that of our friends and allies around the world," he added.

Sen. Shelley Moore Capito, R-W.Va., also reacted, tweeting:

"Once again, a key natural gas pipeline project is needlessly being held up in court. This most recent roadblock of the Mountain Valley Pipeline, which is 94 percent complete, underscores the need for real reforms to our permitting and judicial review processes."

Both Manchin and Capito have been pushing federal permitting reform, including speeding up the process of approval and of court involvement.

Opponents of the pipeline have voiced concerns not only about the pipeline's environmental impact but also about the dangers of an explosion, especially considering the mountainous terrain it runs through and the pipeline's 42-inch diameter, among the largest in the country.

They also have brought litigation related to the MVP's use of eminent domain to cross land when landowners refused easements, saying the pipeline is not for public use.

The MVP also issued a statement.

"Mountain Valley continues to review the Court's decision, however, we are disappointed that MVP's West Virginia 401 Water Quality Certification has once again been vacated," the statement said. "We appreciate the diligent efforts of the WVDEP and will continue to work with the agency on a path forward to completing this critical infrastructure project safely and responsibly. MVP has undergone unprecedented environmental review, and it is being built to higher environmental standards than any similar project that has ever been built in West Virginia or Virginia. With total project work nearly 94 percent complete, Mountain Valley remains committed to working collaboratively with state and federal regulators to finish the remaining work and help ensure Americans have greater access to cleaner, reliable, and more affordable domestic energy."

Plans for another natural gas pipeline, the Atlantic Coast Pipeline (ACP) that was slated to also start in North Central West Virginia, was scrapped in 2020, citing delays, the cost and an uncertain legal future.

— Contact Charles Boothe at cboothe@bdtonline.com

Contact Charles Boothe at cboothe@bdtonline.com