Editor’s note: This is the first of a three-part article on this ruling

RICHMOND, Va. – The United States Court of Appeals for the Fourth Circuit has vacated a Clean Water Certification from the West Virginia Department of Environmental Protection (DEP) for the Mountain Valley Pipeline (MVP). Access the full ruling here.

The decision, announced on April 3, stops construction of the MVP immediately – for now. According to the Court, “The certification reflected the Department’s conclusion that MVP’s activities during the pipeline’s construction would not violate the state’s water quality standards.” The court found otherwise, writing “We find the Department’s justifications for its conclusions deficient and vacate the certification.”

Furthermore, In its decision, the three-judge panel repeatedly referred to the decisions about the MVP by the DEP as, “arbitrary and capricious.”  In vacating the DEP Certification, the Court agreed with four of the five contentions brought by the Petitioners. The unanimous decision was written by Chief Judge Roger L. Gregory. Judges James Andrew Wynn and Stephanie D. Thacker concurred.

“A side note to Senator Joe Manchin. If you even try to exempt MVP or any other project from thorough environmental laws or judicial review you will fail, again.”

Maury Johnson, Monroe County, W.Va. landowner

That is at least a temporary win for the Petitioners working on behalf of the people, water, land and air along the MVP route – the Sierra Club, the West Virginia Rivers Coalition, West Virginia Highlands Conservancy, the Indian Creek Watershed Association, Appalachian Voices, and the Chesapeake Climate Action Network. The organizations were represented by Appalachian Mountain Advocates.

The Respondents were the West Virginia DEP and its Secretary Harold Ward. They were represented by the West Virginia Attorney General and also the DEP. 

According to a statement from Appalachian Voices, “ … the agency’s justification behind its conclusion that the pipeline would not violate the state’s water quality standards was deficient. The 401 certification is a critical permit that MVP needs in order to resume construction through rivers and wetlands in West Virginia, including 193 remaining water crossings in the state.” The statement added, “The court identified multiple failures by West Virginia in issuing the certificate. Specifically, the West Virginia Department of Environmental Protection did not sufficiently address the history of MVP’s water quality violations, did not include a condition requiring MVP to comply with the construction stormwater protection permit, and did not adequately explain why they waived review of location-specific antidegradation policy.”

MVP Background

The MVP was announced in 2014 by Pittsburgh-based Equitrans (EQT). Construction along the 300-mile route began in 2018, with approximately 200 miles of it passing through West Virginia. Successful lawsuits by landowners regarding the abuse of eminent domain, bullying tactics by EQT and its contractors, public health impacts and environmental damage have led to several delays in construction.

In the process of being built, it has cut through mountain ranges, homesteads, farms, forests, and rivers in one of the most thriving yet sensitive ecosystems in the United States. The MVP originates in northern West Virginia, heads south, doglegs to the southeast in southern West Virginia and terminates in Pittsylvania County, Virginia. It is currently about four years behind construction and costs have been double than originally estimated. There is also disagreement over how far along construction is on the $6.2 billion project. EQT asserts that more than 90 percent of the pipeline is completed; environmental groups estimate its closer to just over half complete.

The MVP has a long history of litigation. Indeed, Judge Gregory noted: “This appeal is the latest installment in a series of challenges to Mountain Valley Pipeline, LLC’s (‘MVP’) plans to build a natural gas pipeline.” In this case, the DEP granted a Clean Water Act (CWA) Certification to the MVP, essentially concluded the MVP did not pose risks to West Virginia waterways and river systems. As Judge Gregory noted, “Disagreeing with that determination, landowners and members of various environmental organizations in the state (collectively, ‘Petitioners’) have petitioned for this Court’s review of the Department’s certification”

The Claims and Response from the Court

Understanding a few acronyms included in the Court’s response is in order. They are:

BMP: Best Management Practices

O&G CGP: Oil and Gas Construction General Permit for stormwater discharges

SWPPP: Stormwater Pollution Prevention Plan

According to Judge Gregory, “Petitioners contend that the Department’s Section 401 certification of MVP’s stream crossing activity should be vacated for five reasons: (1) the Department’s decision ignored MVP’s history of violating state water regulations; (2) it failed to make compliance with the O&G CGP and SWPPP a condition of certification; (3) MVP’s plans do not comport with West Virginia’s BMPs contrary to the Department’s conclusions; (4) the Department misconstrued EPA upland construction standards and misapplied those standards in its USCA4 Appeal: 22-1008 Doc: 92 Filed: 04/03/2023 Pg: 18 of 34 19 evaluation of MVP’s in-stream construction plans; and (5) the Department did not conduct location-specific antidegradation review as required by West Virginia regulations.”

The Court ultimately concurred with four of the five contentions – all but the second. Judge Gregory explained, “In sum, the Department’s reasonable assurance determination suffers from four interrelated failures: It did not (1) sufficiently address MVP’s violation history, (2) include conditions requiring compliance with the O&G CGP and SWPPP, (3) provide a reasoned basis for relying on EPA’s upland CGP, or (4) articulate an adequate explanation for forgoing location-specific antidegradation review. Considering these oversights, the Department’s conclusion that MVP’s in-stream construction would be conducted in a manner which will not violate state water standards was arbitrary and capricious.”

Conclusion?: “PETITION FOR REVIEW GRANTED AND CERTIFICATION VACATED,” meaning that for now, the MVP, with 139 violations of its construction permit, is stopped. In addition, the U.S. Army Corps of Engineers is prevented from issuing a Clean Water Act (CWA) discharge permit.

In a statement posted by Appalachian Voices, Russell Chisholm, managing director for the Protect Our Water, Heritage, Rights Coalition, said, “Today’s ruling uplifts the tireless efforts of every single coalition member and volunteer fighting to protect land, water and people.” He continued, “Mountain Valley Pipeline’s assurances don’t match the facts as documented in violation after violation. MVP should abandon their ill-fated project because we will defend every stream and river crossing that can still be saved from permanent harm.”

If grassroots activists like Maury Johnson of Monroe County in southeastern West Virginia have their way, the MVP will go the way of the Atlantic Coast Pipeline, which also was once considered a done deal. Johnson, who I featured in an interview last year, has spent years and traveled thousands upon thousands of miles across mountain ridges and on the Washington Beltway fighting the MVP.

Johnson, a landowner affected by the MVP, is just one of thousands of such activists. A member of Preserve Monroe, and the West Virginia Co-chair of the POWHR Coalition, his response to the Fourth Circuit decision is becoming a refrain. “It is time that MVP halt all attempts to complete the Mountain Valley Pipeline and start the long process of restoring the damage they have done across West Virginia and Virginia.”

He continued, “The decision by the Fourth Circuit Court of Appeals striking down the West Virginia DEP Permit to cross waters in West Virginia is not unexpected.  Having taken a long and informed looked at the now Vacated West Virginia Permit, it was clear to me that the permit was just another attempt to fast track the MVP and would never stand up to the scrutiny of the court.”

He also acknowledged that despite the court win, “It isn’t over.” For instance, while citing it as a major blow to the MVP, Bloomberg Law suggested it will delay the pipeline only about a year from its most recent estimated completion date of late 2023 – if U.S. Senator Joe Manchin (D-W.Va.) is able to overcome unpredictable congressional opposition to his efforts to pass a bill allowing for construction of the pipeline despite permitting requirements. 

Speaking to that scenario, Johnson said, “A side note to Senator Joe Manchin. If you even try to exempt MVP or any other project from thorough environmental laws or judicial review you will fail, again.”

© Michael M. Barrick, 2023

Want to learn more about the MVP, fracking and pipeline construction? Check out my new book, Fractured Sanctuary: A Chronicle of Grassroots Activists Fighting Pipelines of Destruction in Appalachia.