FERC approves amended construction plan for Mountain Valley Pipeline

An amended construction plan for stream and wetland crossings by the Mountain Valley Pipeline won approval April 8 by the US Federal Energy Regulatory Commission (FERC).

The FERC order does not resolve a February court ruling that invalidated a permit for the pipeline to cross the Jefferson National Forest, but it may help the Biden administration win court approval for the crossing in the future thanks to reduced environmental impacts.

Sen. Joe Manchin (D-W.Va.) issued a statement welcoming the decision and encouraging the administration to get the project done. Given the lynchpin role Manchin has been playing for more than a year in the administration’s legislative initiatives and regulator nominations, his remarks may carry weight within the White House.

“There are still several additional steps that need to be taken by the administration to get this critical project—which would put an additional two billion cubic feet [per day] of natural gas into the market within a matter of months—complete,” Manchin said.

The pipeline originates in West Virginia and is more than 90% complete, but the US Court of Appeals for the Fourth Circuit remanded to the US Forest Service and the Bureau of Land Management (BLM) their approvals for the Jefferson National Forest crossing. The court also remanded to the US Fish and Wildlife Service (FWS) its biological opinion assessing risks to endangered species.

Mountain Valley Pipeline LLC has petitioned the full court to review the decision of its three-judge panel in the case (OGJ Online, March 17, 2022). Equitrans Midstream Corp. is the project’s lead developer.

FERC’s action

FERC approved an amended certificate of public convenience and necessity to change the waterbody and wetland crossing method at 120 locations. The project would use trenchless rather than open-cut construction at those sites, meaning the company would bore a pipeline hole underneath the sites. Two slight shifts in the right-of-way, without taking more land by eminent domain, also would avoid one wetland and one water body.

FERC Chairman Richard Glick and Commissioner Allison Clements, both Democrats, wrote a concurrence explaining their support for the April 8 decision.

“The Fourth Circuit held that it was arbitrary and capricious for BLM to approve Mountain Valley’s water crossing method ‘without first considering FERC’s analysis.’ Considering that holding, we agree that it is appropriate for the Commission to issue today’s order, so that BLM can have the benefit of FERC’s analysis to satisfy the court’s remand.”

Glick and Clements added that “if FWS finds that the amendment would in fact jeopardize a listed species or critical habitat, then no further construction would be appropriate and Mountain Valley likely would need to come back with another amendment.”

In another court

The US Court of Appeals for the District of Columbia Circuit considered arguments April 7 in another case involving the project.

An attorney for environmental activist plaintiffs argued that FERC violated the law when it granted a 2-year extension for the project’s certificate of public convenience and necessity. The original certificate was granted in 2017.

The amount of erosion that occurred along the project route in 2018 significantly exceeded FERC projections, which meant FERC should have developed a supplemental environmental impact statement before granting the 2-year extension of the certificate, argued attorney Benjamin Luckett of Appalachian Mountain Advocates Inc. Seven environmental plaintiffs have joined in the case, Sierra Club v. FERC.

FERC attorney Matthew Estes told the court that unusually heavy rainfalls in 2018 caused sedimentation events only slightly greater than anticipated. He argued that a resumption of work on the project would improve environmental protection by replacing temporary safeguards with permanent protections.

At present, Mountain Valley is doing only maintenance work, but it has legal clearance to resume construction outside a 25-mile exclusion zone around the Jefferson National Forest. The zone is the last major part of the route where land has not been disturbed, though trees have been felled, Estes said.