By John McFerrin

The United States Court of Appeals for the Fourth Circuit has granted a stay of the actions of the United States Army Corps of Engineers in its approvals of stream and wetland crossings by the Mountain Valley Pipeline.  This means that construction on stream crossings has to stop until the appeal is decided.

Previously on As the Mountain Valley Pipeline Turns

            As planned, the Mountain Valley Pipeline would have to cross 591 streams or wetlands in West Virginia.  Each requires approval from the United States Army Corps of Engineers.  The developers can either get each crossing approved individually or qualify them all for approval under a nationwide general permit issued by the Corps of Engineers for categories of similar crossings.  The Mountain Valley Pipeline has chosen to try to qualify under the general permit, known as Nationwide Permit 12 (NWP 12).

            In April, 2020, a federal court in Montana ruled that the general permit, known as NWP 12, was void because it was issued improperly.  Because of this, the pipeline company in Montana could not rely upon it.

            Groups in West Virginia (including the West Virginia Highlands Conservancy) asserted that the same rule should apply in West Virginia to the Mountain Valley Pipeline.  Meanwhile, up in Washington, the United States Supreme Court issued a stay of the Montana court’s ruling.  The ruling remained in effect in the Montana case but does not apply in the rest of the country until after the Montana case is finally resolved.  More about this in the October, 2020, issue of The Highlands Voice.

            In late September, 2020, the Corps of Engineers approved the Mountain Valley Pipeline’s stream crossings, using the general permit, NWP 12.  Several citizen groups (including the West Virginia Highlands Conservancy) appealed that decision to the United States Court of Appeals for the Fourth Circuit.

What Happened

            The Court of Appeals for the Fourth Circuit has not yet decided the case.  It has, however, stopped construction on stream crossings while the case is pending.

A West Virginia Wrinkle

            The controversy about the Mountain Valley Pipeline and its stream crossings is not just about its reliance upon a nationwide permit that was improperly issued.  There is something else.

            Even though a nationwide permit is issued by the Corps of Engineers for the whole country, states can add extra requirements (called conditions) to the permit as it applies in their state.  When Nationwide Permit 12 was reissued in 2017, West Virginia added some conditions.  The conditions that are relevant here have to do with steps that developers have to take when crossing more substantial rivers or streams, streams where construction might take longer.  The groups contend that the Mountain Valley Pipeline is in violation of those conditions.

A Wrinkle on the Wrinkle

            The nationwide permits that the Corps of Engineers previously issued for the whole country are in the process of being renewed.  At renewal, the states have an opportunity to add or take away conditions that they had previously imposed upon the permits.  West Virginia is proposing to eliminate many of the conditions it had previously imposed on NWP 12, including the condition that is relevant in the Mountain Valley Pipeline case.  Its position is that conditions are fine in the abstract but not when they prevent somebody from doing something they wanted to do. 

            Eliminating the conditions is just a proposal.  The West Virginia Department of Environmental Protection has asked for public comments on the proposal.  It may or may not become final.

            The West Virginia Highlands Conservancy has opposed eliminating the conditions, as has the West Virginia Rivers Coalition, among others.

Note:  The “Wrinkle on the Wrinkle” is included both because it is relevant and true but also just in case there is someone who thinks that litigation on the Mountain Valley Pipeline was not complicated enough already.