March 2022, Vol. 249, No. 3

Editor's Notebook

So Close, Yet So Far

By Michael Reed, Editor-in-Chief

That victory for midstream was certainly short-lived.  

Once again, a U.S. appeals court has tossed out permits granted by federal agencies that would have allowed the Mountain Valley Pipeline (MVP) to cross a 3.5-mile (5.6-km) section of the Jefferson National Forest as it traverses a portion of the Jefferson National Forest in Appalachia.  

According to the 4th Circuit Court of Appeals, both the Forest Service and the Bureau of Land Management (BLM), came up short in their assessment techniques regarding erosion and sediment deposits caused by the construction of large infrastructure projects, such as pipelines.  

One judge, Stephanie Thacker, went as far as to write that the agencies “erroneously failed to account for real-world data suggesting increased sedimentation along the pipeline route.”  

These “real-world” data showed water cloudiness downstream in the Roanoke River became 20% higher than upstream as the result of large projects. “This was in sharp contrast to the 2.1% increase predicted by the company’s hydrologic analyses,” the court said.  

A records check of the new supplemental impact review prepared by  
the Forest Service and the BLM revealed that both used hydrological analyses provided by the MVP developers, which failed to consider water-quality monitoring data from the U.S. Geological Survey.   

Regardless of the degree to which the agencies’ assessments were found lacking, the court’s decision kicks the permit back to these same agencies for reconsideration. It also leaves MVP with a fair amount of reassessing to do.  

Shortly after the decision, Mountain Valley spokesperson Natalie Cox told The Roanoke (Va.) Times in an email that the joint venture is “thoroughly reviewing the Court’s decision regarding MVP’s crossing permit for the Jefferson National Forest and we will be expeditiously evaluating the project’s next steps and timing considerations.”  

The first time around, the same court sent Forest Service and BLM assessments back to the agencies for violating the National Environmental Policy Act, citing the need for a more thorough analysis of the projects’ potential effect on sedimentation.  

At the core of yet another ruling, which came one day later, was the possible fate of two endangered species of fish, the Roanoke logperch and the candy darter. Judge James Wynn, in the court’s unanimous decision wrote, in part, “if a species is already speeding toward the extinction cliff, an agency may not press on the gas.”   

As recently as last summer, MVP still hoped to have the 42-inch pipeline online in the summer of 2022, which seemed to be wishful thinking, even before these latest setbacks. This is especially true considering the project still lacks a final permit to cross steams and wetland en route from northern Virginia.   

Also, separate approvals from the U.S. Fish and Wildlife Service and the Federal Energy Regulatory Commission are currently facing court challenges from environmentalists.  

In January, MVP noted it had only 20 miles (32 km) of the project’s 303 miles (487 km) of pipeline remaining to be welded, which is certainly a good thing to keep in mind. This is far from an insurmountable obstacle for a company with MVP’s resources. After all, it is a $6.2 billion project.  

It seems, and this is certainly an overly simplified view on my part, that MVP eventually will have to pony up for some type of remediation effort concerning the downstream water cloudiness of the Roanoke River.   

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