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Environmentalists argue against pipeline water crossing plans

Conservation groups urged a federal appeals court to throw out a key permit for the Mountain Valley Pipeline, arguing it will harm hundreds of waterways.

RICHMOND, Va. (CN) — The Fourth Circuit heard the latest challenge to the controversial Mountain Valley Pipeline on Tuesday, this time over a construction certificate issued by Virginia's State Water Control Board allowing the pipeline to cross over streams and wetlands.

A consortium of conservation groups, including the Sierra Club and Appalachian Voices, filed a petition for review with the Richmond-based appeals court in 2021 challenging the permit approval, claiming it violates the Clean Water Act.

"The agency refused outright to evaluate whether there were preferable locations for MVP's crossings," Appalachian Mountain Advocates attorney Derek Teaney, representing the conservation groups, said during Tuesday's hearing. "They uncritically accepted MVP's crossing methods."

The state permit, issued based on federal approval from the Federal Energy Regulatory Commission, requires the state to certify that water quality standards will be met. The environmentalists argue that trenching hundreds of waterways does not meet Virginia's water quality standards. 

"Rather than examine MVP's alternative analysis with scrutiny and explaining their acceptance of it, the agencies blindly accepted it," Teaney said. 

Erika Maley, Virginia's principal deputy solicitor general, argued for the state that changing even one of MVP's proposed waterbody crossings would significantly impact the project. 

"Pipelines are long, contiguous projects," Maley said. "It's not possible for the agencies to require a change in the location of one crossing without that impacting the location of the pipeline elsewhere." 

The state water board contends it went above and beyond in issuing the certification. 

"Virginia's environmental agencies far exceeded the requirements of federal or Virginia law in their rigorous review of the Mountain Valley Pipeline," the agency's brief states. "They have spent thousands of hours of agency review time over the course of years, ultimately imposing the most stringent set of conditions Virginia has ever required for this type of project."

Counsel for Mountain Valley Pipeline LLC said in its brief that no research would satisfy the conservation groups because of a larger energy issue.

"No degree of study will ever suffice for them," the company's brief states. "They want to kill the project because the pipeline would transport natural gas, and they oppose any use of fossil fuels."

U.S. Circuit Judge Stephanie D. Thacker, a Barack Obama appointee, asked Teaney what more the agency could have done after going through thousands of comments on how to issue the certification in a way that would not harm the environment. 

"What is your best argument that they completely ignored something?" Thacker asked. "They considered 8,000 comments and asked clarifying questions." 

Teaney responded by saying that the agency ignored expert analysis. The environmentalist submitted a report that outlined inconsistencies in the MVP application that Teaney said were not mentioned.  

"They ignored expert critical commentary," the attorney said. "There is not a word in there about the expert commentary."

The conservation groups argue pipeline water crossings should be underground, but the water board's permit allows the pipeline to be built through above-ground trenches that the groups say are worse for the environment. 

The water board argues both methods are necessary depending on the site. 

"Trenchless methods cross over or under the waterbody, with the significant advantage of not directly affecting the waterbody or disturbing aquatic wildlife or habitats there," the state's brief states. "Each type of trenchless crossing, however, has limitations and disadvantages that can make it unsuitable for particular sites."

In their brief, the conservation groups outlined worries of Virginians regarding crossings over waterbodies. 

"[Russell] Chisholm uses or visits Sinking Creek daily, particularly a historic covered bridge and municipal park, both of which are located within 2.5 miles of several proposed Pipeline crossings," the brief states. "Knowing that Pipeline construction will affect water quality in the Sinking Creek watershed, negatively impacting the wildlife and unique natural beauty of Giles County, already lessens Chisholm's enjoyment and brings him constant worry and frustration."

U.S. Circuit Judge James Andrew Wynn, another Obama appointee, and Chief U.S. Circuit Judge Roger L. Gregory, a George W. Bush appointee, rounded out the three-judge panel. The judges did not indicate when they would issue a ruling.

Attorneys representing the state and the pipeline company did not respond to requests for comments after the hearing. Teaney said it's his firm's policy not to comment on ongoing litigation. 

Tuesday's hearing was just the latest before the Fourth Circuit over the controversial pipeline. Last year, a three-judge panel invalidated the U.S. Fish and Wildlife Service's 2020 biological opinion and incidental take statement for the MVP project, after a collection of environmental organizations argued the FWS failed to consider the pipeline's environmental impact on endangered fish.

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