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Breaking News: Appeals Court Deals Another Crushing Blow to the Mountain Valley Pipeline and the Atlantic Coast Pipeline

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by Jon Sokolow

Earlier today, the U.S. Court of Appeals for the Ninth Circuit issued an order denying an emergency stay pending appeal in a Montana case that has direct implications for the Mountain Valley Pipeline (MVP) and the Atlantic Coast Pipeline (ACP).

As we wrote here, on May 11, a federal district court judge voided a general permit known as Nationwide Permit 12, which oil and gas pipeline companies, including MVP and ACP, rely upon to cross water bodies, including rivers, streams and wetlands.  The judge’s order came in a case involving the Keystone XL pipeline, but the judge voided the permit nationwide, meaning no company can utilize it until proper consultation is done between federal agencies as required by the Endangered Species Act.

MVP is relying on NWP 12 to cross more than 1,200 water bodies on its 300-mile path from West Virginia through Virginia. ACP seeks to use NWP 12 to cross more than 1,000 water bodies along its 600 mile route in West Virginia, Virginia and North Carolina.

As we noted, MVP and ACP want to use NWP 12 to avoid having to get individual permits for each water crossing, which would require a “stream by stream” analysis of the route.  They thought they could avoid such scrutiny of their proposed routes.  And they were worried that such an analysis would lead to denial of individual permits on environmental grounds.

As we said then, now the chickens have come home to roost.

The Keystone XL companies, supported by a bevy of states and trade associations – including Dominion Energy, the main company behind the ACP, filed an emergency motion for a stay pending appeal.  They argued that they ultimately would win their appeal and that they would be irreparably harmed if the district court order were to remain in effect pending appeal.

The Ninth Circuit rejected both arguments:

“Appellants’ emergency motions for a partial stay of the district court’s April 15, 2020 and May 11, 2020 orders pending appeal (Docket Entry Nos. 11, 12, 19, and 34 in 20-35412) are denied. Appellants have not demonstrated a sufficient likelihood of success on the merits and probability of irreparable harm to warrant a stay pending appeal.”

For now, the appeal continues.  But meanwhile MVP, ACP and other companies are prohibited from doing any work on their corporate boondoggles in reliance on NWP 12.  With a combined cost of almost $14 billion, these fossil fuel monstrosities should have been abandoned years ago.

Now would be a great time for MVP and ACP to cut their losses and cancel these projects.  The last thing we need, in the middle of a pandemic, is a major new investment in fossil fuels.

It’s time for these chickens to go home.