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Long-running pipeline dispute returns to Fourth Circuit

Construction on the 303-mile pipeline was halted in 2018 by one of the same judges who sat on Friday's panel.

RICHMOND, Va. (CN) — The company behind a long-beleaguered natural gas pipeline returned to the Fourth Circuit on Friday morning with the hope newly acquired permits would survive renewed challenges from Appalachian environmental groups.

The federal appeals court heard arguments in a pair of cases filed against federal agencies for their decisions related to the Mountain Valley Pipeline’s water crossings and environmental impact assessments.

“The agencies have again permitted the Mountain Valley Pipeline to construct a gigantic pipeline across steep and erodible slopes and streams in Jefferson National Forest,” Sierra Club attorney Nathan Matthews said on behalf of Appalachian Voices and others local groups in their fight against the U.S. Forest Service and the Bureau of Land Management. “There are many issues but the central issues are still sentiment and erosion.”

Erosion concerns led the Fourth Circuit to halt the pipeline's construction in a July 2018 decision by U.S. Circuit Judge Stephanie Thacker, a Barack Obama appointee who sat on Friday's panel at the Richmond-based appeals court.

Matthews argued the sword that slayed the permit back then remained in agency decisions issued earlier this year, and to make things worse, data collected since then shows even more sediment-related damage had occurred.

“New hydro analysis, despite its flaws, predicts even more sentiment, 20% more,” Matthews argued during hearing, held virtually due to the coronavirus pandemic. The figure he referenced, collected by the U.S. Geological Survey, was part of a data set he argued the federal government failed to consider. 

Despite questioning the hydraulic analysis, Matthews said if it was correct it would be even more damning to the project. 

“We don’t know what the results will be,” he said, suggesting the new sediment levels could violate Virginia’s water quality standards and possibly the Bureau of Land Management's obligation to maintain water quality.

But Justice Department attorney Brian Toth argued the agencies did their due diligence when the new permits were approved, and arguments made by the environmental groups claiming otherwise should fail on those grounds. 

“Given the presumption of administrative regularity you have to take that statement at face value and assume if the data was submitted it was considered by the agency,” he said.

Attorney Donald B. Verrilli of Munger, Tolles & Olson represented Mountain Valley Pipeline LLC, which intervened in the two cases before the Fourth Circuit. He went a step further than Toth and argued the standard the environmental groups expected for the decision-making process was too high for the land in question. Jefferson National Forest, where the disputed water crossings are located, is not a national park, meaning it doesn't carry the same level of scrutiny the environmentalists expect. 

“It's not supposed to be kept for entirely pristine use like a park and Forest Service is required to keep it for multiple uses,” Verrilli argued, saying the distinction is critical because Congress allows national forests to be impacted by projects like pipelines. 

“The question is whether the agency took a good look at those changes and made a proper response and they did here,” he added. 

Friday’s second hearing involved the pipeline's impact on local endangered species: two fish, the Roanoke logperch and the candy darter, and the the Indiana bat. 

Sierra Club attorney Elizabeth F. Benson opened arguments in the case against the U.S. Department of the Interior with concerns about how nearly 1,000 miles of streams would be impacted, but she also noted the logperch was slated to face extinction in the coming decades, something that struck the panel. 

“Even without the pipeline, some of these species will become extinct in 25 years?” Thacker asked with a level of dismay. 

“An agency can’t take an action that deepens that jeopardy or causes additional harm, which this pipeline does,” Benson responded.

But the problem, she argued, went further when the Interior Department failed to take into account additional factors that are not directly related to the project, a problem she said should nix the environmental assessment entirely. 

“The U.S. Fish and Wildlife Service analyzed the project's impacts in isolation, which it's not supposed to do,” she said. 

But Justice Department attorney Kevin W. McArdle said the government’s scientists spent the last year developing the assessment, which aims to predict environmental impacts for the next 100 years.

“The 17-year data set [used in the study] is the best that we have and it showed there was no trend in environmental changes,” he argued. “Petitioners' assessment that everything will get worse in the future, the data doesn’t support that.”

But U.S. Circuit Judge James Wynn noted the lack of the term "climate change" in the assessment.

“Isn’t that important? Where in the study is this being accounted for?” the Obama appointee asked.

McArdle said the use of the term didn’t matter. 

“It's storm events and climate-related issues,” he said, noting the data included flood and drought information. “That’s what we’re concerned about and that's included in the opinion. It captured the period of highest and lowest flow.”

Wynn questioned whether that data was really included, but the government's attorney said deference should still be given to the agency. 

“Precedent says an agency’s decision will be upheld even if it's got less than ideal clarity as long as its path can be reasonably discerned,” he said before admitting “the service could have done a better job here.”

In a post-hearing statement, a spokesperson for Mountain Valley Pipeline said they could not comment on the pending litigation but were confident state and federal permitting requirements would be met in time to start operations by summer of 2022.

U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee, rounded out Friday’s panel. The judges did not signal when they intended to rule.

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