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

GAP MILLS, W.Va. – Senior Attorney Jared Margolis with the Center for Biological Diversity says that the decision by the United States Court of Appeals for the Fourth Circuit to vacate a Clean Water Certification issued by the West Virginia Department of Environmental Protection (DEP) “Is a very unusual scenario.”

The Clean Water Certification was issued by the DEP for the Mountain Valley Pipeline (MVP). In response, several environmental organizations sued, asserting that the Certification violated the Clean Water Act. On April 3, the Court concurred, vacating the Certification and halting MVP construction for the moment. Of note, the Court referred to the DEP decision as “arbitrary and capricious” and also “deficient.”

Margolis, who is not involved in the case, observed, “It’s a very rare scenario. To have new impacts that stop the project shows the state just didn’t take the facts into consideration.” He added that it didn’t surprise him, explaining, “The agency (DEP) simply ignored facts already seen.”

The unanimous decision was written by Chief Judge Roger L. Gregory. In it, the three-judge panel referred to the DEP decision has “Arbitrary and Capricious” and “Deficient.”

Responding to the first contention from the Petitioners in the case, Judge Gregory wrote, “We find the Department’s reasonable assurance determination to be arbitrary and capricious because it failed to provide a reasoned explanation as to why it believes MVP’s past permit violations will not continue to occur going forward. … 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.”

“It’s a very rare scenario. To have new impacts that stop the project shows the state just didn’t take the facts into consideration. The agency (DEP) simply ignored facts already seen.”

Senior Attorney Jared Margolis with the Center for Biological Diversity

The wording is significant explained Margolis. “‘Arbitrary and Capricious’ is a legal term. It’s a standard of review used to overturn a policy that is not in accordance with the law.” In other words, the Fourth Circuit found that “There was no rational decision based upon the facts” for the DEP to issue the Clean Water Certification, he explained. “It boils down to the number of violations made by the MVP. The DEP is ignoring violations.” He continued that it means the Court decided “The facts don’t support the conclusions that led the DEP to issue the Certification.”

Gregory, in explaining the Court’s decision, wrote, “We find the Department’s justifications for its conclusions deficient and vacate the certification.”

“Deficient,” said Margolis, “simply means the Court isn’t buying the (DEP) argument.” He noted, “It’s not common. But it had a huge number of violations that halted the project even as it was ongoing for violations. It has been a very rare situation and it’s clear from the facts that the agency has been arbitrary and capricious.”

Noting that numerous biological studies on the impacts of fracking and pipeline development are underway, Margolis warned, “(Issuing the Certification) is not logical considering the facts.” He continued, “It’s not over. It’s not the last word. But it’s nice to see judges step up and do the right thing.”

According to the Center’s website, Margolis works on the Center’s Energy and Endangered Species campaign. He earned his B.A. in geography from Colgate University and completed a master’s in environmental studies at Brown University before attending Vermont Law School. He has represented nonprofit and citizen groups working to protect the environment; he has challenged large-scale developments including nuclear power plants and taught environmental law at the University of Vermont. He continues to teach in an adjunct capacity at the University of Oregon.

© 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.