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Federal Judge Deals Another Huge Blow to Atlantic Coast Pipeline and Mountain Valley Pipeline

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by Jon Sokolow

Yesterday, a federal judge in Montana issued an order with huge negative implications for the Atlantic Coast Pipeline and the Mountain Valley Pipeline.  The ruling, coming in a case brought to stop the Keystone XL Pipeline, effectively prevents the Atlantic Coast Pipeline and the Mountain Valley Pipeline from doing any construction across the thousands of waterways they would cross.

On April 15, the judge in Northern Plains Resource Council v. U.S. Army Corps of Engineers, issued a nationwide order vacating a key federal permit, known as Nationwide Permit 12 (NWP 12 for short).  Chief District Court Judge Brian Morris ruled that the Corps failed to comply with key provisions of the Endangered Species Act when it issued NWP 12 in 2017.

Pipeline companies routinely rely on NWP 12 for authority to cross rivers, streams and wetlands, instead of seeking individual water crossing permits, which would require close analysis of impacts to endangered species and aquatic life.

The proposed Atlantic Coast Pipeline, owned by Dominion Energy and Duke Energy, would cross more than 1,000 waterways along a 600-mile route through West Virginia, Virginia and North Carolina.  Virtually none of the pipeline has been built.

Mountain Valley Pipeline, owned by a group of companies led by spinoffs from EQT Corporation, a Pittsburgh based fracking company, would cross more than 1,200 individual water bodies over a 300-mile route in West Virginia and Virginia.  MVP has been partially constructed – estimates differ – but virtually none of those individual water crossing have been built.  Construction of both pipelines has been frozen as a result of separate rulings by the federal appeals court in Richmond, which found multiple violations of the Endangered Species Act by both pipelines.

Both MVP and ACP made decisions not to seek individual water crossing permits.  Instead, they sought and received approval to use NWP 12 as a blanket approval, thus avoiding individual reviews.  Pipeline fighters in West Virginia, Virginia and North Carolina demanded that regulatory bodies at the federal and state levels perform a “stream by stream” analysis for both pipelines.  They were ignored.

During the 2017 Democratic primary for Governor, Tom Perriello mounted an unexpectedly strong progressive challenge to Ralph Northam, the Lieutenant Governor to Terry McAuliffe, a strong supporter of both pipelines.  At the beginning of his campaign, Perriello came out strongly against both pipelines, and they became a big issue in the campaign.

To head off the challenge, Northam wrote a letter calling on the Virginia Department of Environmental Quality to engage in a stream by stream analysis when reviewing pipelines and mentioned this letter in a debate against Perriello shortly before primary day.  In fact, Northam promised that DEQ would require a site-specific permit anywhere there was a water crossing.  Northam broke that promise once he got elected, reappointed pipeline apologist David Paylor to head DEQ and forgot all about stream by stream.  No such analysis has ever been performed.

Now the chickens have come home to roost.

The Keystone XL companies, joined by a group of industry powerhouses – including Dominion Energy – who intervened in the Montana case, filed papers asking Judge Morris to reverse himself, or at least modify his April ruling to apply only to the Keystone XL pipeline.  They also asked the judge to stay his own order pending appeal.

Judge Morris said no to both requests.

In response to the complaint from Dominion and others that his ruling left them unable to cross any water bodies, the judge pointed out that they had another choice:

“NWP 12 does not stand as Intervenors’ only option. Developers remain able to pursue individual permits for their new oil and gas pipeline construction….Intervenors possess no inherent right to maximize revenues by using a cheaper, quicker permitting process, particularly when their preferred process does not comply with the [Endangerd Species Act].”

Judge Morris noted the companies’ complaint that his earlier order was not in the public interest, because it would prohibit minor projects, such as utility lines, from proceeding, as well as necessary maintenance of existing pipelines.  And he specifically authorized that sort of work. But the bulk of his original order – prohibiting any new pipeline from relying on NWP 12 to cross waterbodies – remains intact.  And for now, it is the law of the land.

“No public interest exists in allowing the construction of new oil and gas pipelines to proceed before the Corps has completed the legally required programmatic consultation under § 7 of the Endangered Species Act,” the judge wrote.

As a result “NWP 12 is vacated as it relates to the construction of new oil and gas pipelines pending completion of the consultation process and compliance with all environmental statutes and regulations.”

In addition, “[t]he Corps is enjoined from authoring any dredge or fill activities for the construction of new oil and gas pipelines under NWP 12 pending completion of the consultation process and compliance with all environmental statutes and regulations.”

In effect, this court order serves as a nationwide injunction prohibiting new pipelines, including MVP and ACP, from using NWP 12.

As if to underscore his rejection of the companies’ doom and gloom complaints, the judge specifically noted that pipeline opponents had submitted evidence of the damage that huge pipeline projects around the United States would have because of reliance on NWP 12.

“Plaintiffs now have submitted additional declarations to underscore the harm that they and their members may suffer from NWP 12’s unlawful use, particularly from construction of major oil and gas pipelines throughout the country.”

One of those declarations focused specifically on the Mountain Valley Pipeline and the Atlantic Coast Pipeline and the impact those projects would have along their combined 900-mile route.

Keystone XL will no doubt appeal this ruling.  And ACP and MVP will continue to spin repeated court losses as “temporary” setbacks.  But for now, the nationwide injunction represents another huge impediment to construction of two massive pipelines that together, would more than double Virginia’s production of green house gases from stationary sources.

Both the ACP and MVP have lost multiple permits, are years behind their original targeted completion dates and are billions of dollars over budget (the latest cost estimates are $8 billion for the ACP and $5.5 billion for the MVP).  As a result, the future is looking increasingly grim for both of these corporate boondoggles – which is great news for the rest of us and our planet.

In the middle of a global pandemic, the last thing we need to do is exacerbate the climate emergency by allowing $13 billion of new investment in fracked gas pipelines to run through Virginia.

And we certainly don’t need thousands of out of state workers – whose health conditions are unknown – to come to Virginia in the middle of a health emergency, potentially steepening the curve in rural areas that already struggle with limited health resources and have high numbers of older people at higher risk due to pre-existing conditions.

It is long past time for the companies behind these projects to fold their tents and go home.