An appellate court made short work Tuesday of a sweeping challenge of the federal government’s approval of the Mountain Valley Pipeline, dismissing 16 claims made by opponents.
“None of the challenges succeeds,” a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia wrote in a five-page order.
In perhaps the most comprehensive legal attack on the controversial pipeline, opponents had hoped to find a fatal flaw in the key approval it received from the Federal Energy Regulatory Commission in October 2017.
The determination by FERC that there was a public need for the natural gas to be transported through the 303-mile pipeline opened the gate for a series of other approvals by state and federal agencies.
Although several of the permits have since been suspended, Mountain Valley construction crews have been able to continue work over the past year with FERC’s ultimate authority intact.
“It is unfortunate the Court failed to give substantive consideration to our many concerns,” several members of community groups who were part of the legal challenge said Tuesday in a joint statement.
“We are disappointed but undeterred.”
The court’s brief order comes less than three weeks after it heard oral arguments in a consolidated case brought by a total of 24 environmental organizations, community groups and individuals.
A central theme was the question of whether there was a public need for the gas from the pipeline, and whether FERC had sufficient evidence on which to base its certificate of public convenience and necessity.
In finding there was a market demand, FERC relied entirely on contracts between the pipeline’s owners and shippers, which are all part of the same corporate structure.
“The fact that Mountain Valley’s precedent agreements are with corporate affiliates does not render FERC’s decision to rely on those agreements arbitrary or capricious; the certificate order reasonably explained that ‘an affiliated shipper’s need for new capacity and its obligation to pay for such a service under a binding contract are not lessened just because it is affiliated with the project sponsor.’ ”
Critics had argued that the arrangement amounted to “the left hand doing business with the right hand” and did not represent a true market demand.
FERC’s approval allowed Mountain Valley to use eminent domain — a legal power usually held by governmental bodies — to take private land it needed to build its pipeline across steep mountains and through pristine streams.
The appeals court was unconvinced by several arguments that FERC’s delegation of eminent domain to a private venture like Mountain Valley was improper.
Also unsuccessful was the claim that the agency failed to adequately consider the greenhouse gas emissions linked to the pipeline, as required by the National Environmental Policy Act.
Lawyers for FERC and Mountain Valley argued that questions about where the gas will ultimately wind up made it difficult to gauge its impact on climate change.
Although maintaining FERC’s approval Tuesday was a victory for Mountain Valley, the company still must maneuver the rest of a regulatory and legal obstacle course before it can meet its goal of completing the pipeline by the end of the year.
Virginia’s State Water Control Board is scheduled to meet March 1 to discuss whether it should revoke a water quality certification it awarded to the project in December 2017, before construction began to cause widespread problems with erosion and sediment-laden water contaminating nearby streams.