Fourth Circuit Hears Two Challenges to Gas Pipeline Project

RICHMOND (CN) – Two legal challenges to a controversial natural gas pipeline were heard by the Fourth Circuit Tuesday, the plaintiffs taking issue with how the pipeline will be constructed and its long-term implications for the environment.

First to address the three-judge panel Tuesday was Sierra Club lawyer Benjamin Luckett who questioned the extent to which Virginia’s Water Quality Control Board reviewed how the pipeline construction would affect area waterways.

Luckett called the 303-mile pipeline, which will carry gas from West Virginia through the mountainous southwest section of Virginia, an “unprecedented” development for the region and said clearing a path for it would lead to erosion that would ultimately violate the Clean Water Act.

He said studies by the Sierra Club showed a 1500 percent increase in sedimentation, the process by which particles settle into waterways, and the state hadn’t taken this evidence into account when it issued a permit allowing the project to proceed.

“It’s a state’s duty to determine the damage from erosion,” Luckett told the judges. “The state hasn’t followed procedure without that analysis [and without this data] the state can’t conclude the project is safe.”

But U.S. District Judge William Traxler, a Clinton appointee, immediately questioned the mere presence of today’s challenge.

“If you were to succeed, what will [the federal agency in charge of the project] do?” he said. “These challenges seem like they have no end.”

But Luckett said the state had the final word on the project under federal law, and it was within its power to halt the project until more data was taken into account.

He pointed to the New York-based Constitution Pipeline which was blocked earlier this year after the state agency revoked its permit. An attempt to block that revocation was denied by the U.S. Supreme Court. All of this happened despite two approvals by the U.S. Federal Energy Regulatory Commission, known as FERC.

“FERC could order a stop [on construction] which they’d have to do if the state denied the permit,”  Luckett said.

But Toby Heytens, solicitor general for the Virginia Department of Environmental Quality, said all practical data had been taken into account ahead of the pipelines construction, and any concerns people might have about incidents are overblown compared to the “unprecedented” scope of the environmental impact study the agency conducted.

“We use tried and true methods and expect the best, but we’ll also regularly monitor the project,” he said, noting the agency had teamed up with the US Geological Survey to keep watch over impacts the project might have on water systems.

“Virginia used the full scope of its regulatory authority [on this project],” he said.

A lawyer for Mountain Valley Pipeline, George Sibley, also spoke. After questioning the court’s authority to hear the case, he also stressed the unprecedented nature of the impact study.

“The methods used to control construction runoff are tried and true and valid under state law,” he said.

The second Sierra Club-lead challenge of the day involved amendments the National Forest Service made to its plan to help facilitate the Mountain Valley Pipeline.

Specifically, the plan allowed the pipeline to be constructed through a portion of Jefferson National Forest which the environmental group said would lead to widespread erosion damage and harm migratory species that pass through the region.

“Smaller pipelines have led to larger impacts,” said Nathan Matthews who argued on behalf of the Sierra Club.

He focused mostly on the right-of-way path that would need to be cut for construction. He said the area was considered “interior forest” and cutting it away would change it to “edge forest” which changes the sunlight levels, amount of wind and the paths used by predators in these areas.

“It would no longer be interior forest,” Matthews said. “The environmental impact statement doesn’t address this.”

He also questioned the sedimentation impact of the project and noted the National Forest Services’ own opinion on predicted sedimentation is often “imperfect in its implication.”

Matthews said past attempts to pre-determine this kind of environmental impact have often lead to “catastrophic failures,.”.

But Kevin McArdle, attorney for the Justice Department’s Environment and Natural Resources Division, said the entire process was in line with the  federal law, the National Environmental Policy Act, which governs the issue.

McArdle said the debate at hand was about a very small portion of the pipeline and it was within the Forest Service’s power to amend the plan as they saw fit.

“It’s only 88 acres [which will be impacted] and most will regenerate over time,” he said.

The Mountain Valley Pipeline construction started in January with tree clearing in West Virginia, and it is expected to continue into Virginia in the coming months.

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