Federal court upholds Virginia stream-crossing permit for Mountain Valley Pipeline

In a win for Mountain Valley Pipeline, a federal court on Wednesday struck down a challenge to a 2021 decision by Virginia’s State Water Control Board and Department of Environmental Quality to grant the project a critical stream-crossing permit, concluding state officials “did not simply ‘rubber stamp’” the request.

“DEQ did not simply grant MVP’s application without considering its merits,” wrote Judge Stephanie Thacker in an opinion for the Richmond-based U.S. 4th Circuit Court of Appeals that was also backed by Chief Judge Roger Gregory and Judge James Wynn. 

“Rather, the agency held multiple public meetings where it heard directly from the public, considered nearly 8,000 public comments, addressed several recurring issues raised by the commenters, and provided a Final Fact Sheet detailing its reasons for recommending that the Board grant MVP’s application,” she continued. 

The ruling was a departure from a string of decisions by the 4th Circuit overturning permits for the 303-mile natural gas pipeline through West Virginia and Virginia that developers have been trying to build since 2014. Four judges on the court, including Thacker, Gregory, Wynn and former judge William Traxler, have repeatedly found federal agencies conducted inadequate or flawed reviews as the basis of issuing those permits. 

Mountain Valley Pipeline in May 2022 petitioned the court to assign different judges to its cases, arguing that in 12 petitions challenging different authorizations for the Mountain Valley and now-canceled Atlantic Coast pipelines, the judges “vacated or stayed all but two.”

MVP’s petition was denied. 

The petition the court struck down Wednesday was filed by 10 environmental groups, led by the Sierra Club, Appalachian Voices, the Chesapeake Climate Action Network and Wild Virginia after Virginia’s water board voted 3-2 in December 2021 to approve a state water protection permit for the pipeline. 

[Read more: Mountain Valley Pipeline stream-crossing permit approved by Virginia regulators]

David Sligh, conservation director for Wild Virginia, said in a statement that the groups “respect the court’s opinion but we are disappointed that the Board’s badly flawed decision will stand.” 

The December 2021 permit fulfills a requirement under the federal Clean Water Act that pipelines obtain state and federal permits guaranteeing they won’t significantly degrade water quality during construction or operation. 

DEQ officials at the time said they expect the Mountain Valley Pipeline to temporarily impact 315 stream crossings and four acres of wetlands during construction, as well as two stream crossings and two acres of wetlands on a permanent basis. 

Mountain Valley Pipeline spokesperson Natalie Cox said in a statement that MVP was pleased with the decision, which she called “one additional step forward in completing this critical infrastructure project.”  

“Since the onset of the Mountain Valley Pipeline (MVP) project, we have worked closely with state and federal environmental agencies to provide accurate, comprehensive information that would allow for a thorough environmental review of the project,” she wrote in an email. 

Despite the legal victory, the project is still seeking federal approvals from the U.S. Forest Service to cross a portion of the Jefferson National Forest and from the U.S. Army Corps of Engineers. After numerous legal challenges and the loss of several permits, the pipeline is years behind schedule and billions over its original budget. 

Cox said MVP expects for the project to begin operating in late 2023.  

An attempt last fall by Democratic West Virginia Sen. Joe Manchin III to force the issuance of Mountain Valley’s remaining permits through legislation failed.