The U.S. Fourth Circuit Court of Appeals has vacated – for the second time – the approvals granted by the U.S. Forest Service (NFS) and the Bureau of Land Management (BLM) for the Mountain Valley Pipeline (MVP) to cross 3.5 miles of the Jefferson National Forest. The three-judge panel’s unanimous opinion, authored by Judge Stephanie Thacker, stated:
“In sum, we conclude that the Forest Service and the BLM 1) inadequately considered the actual sedimentation and erosion impacts of the Pipeline; 2) prematurely authorized the use of the conventional bore method to construct stream crossings; and 3) failed to comply with the Forest Service’s 2012 Planning Rule. Therefore, we grant the petitions for review as to those errors; deny the petitions with regard to Petitioners’ remaining arguments about the predecisional review process, alternative routes, and increased collocation; vacate the decisions of the Forest Service and the BLM; and remand this matter to the agencies for further proceedings consistent with this opinion.”
The same panel (which included Chief Judge Gregory and Judge Wynn) had struck down in 2018 earlier permits for the MVP issued by the NFS and BLM. The decision was a consolidation of two cases, one against the NFS, the other against BLM. Plaintiffs in both cases were Wild Virginia, Sierra Club, Appalachian Voices, Wilderness, Preserve Craig, Save Monroe and Indian Creek Watershed Association. Arguing before the Court for the plaintiffs on October 29, 2021 was Nathan Matthews of Sierra Club.
On the judgment that the agencies inadequately considered actual sedimentation and impacts of the MVP, the Court noted the failure of data from the U.S. Geological Survey (USGS) to be considered:
“The Forest Service and the BLM erroneously failed to account for real-world data suggesting increased sedimentation along the Pipeline route. There is no evidence that the agencies reviewed the USGS water quality monitoring data from the Roanoke River, which may indicate a significant increase in sedimentation beyond that predicted in the modeling used for the supplemental EIS. At the very least, the supplemental EIS should have acknowledged this disparity and explained its impact on the agencies’ reliance on the sedimentation data in the hydrological analyses.”
A spokesperson for the MVP said that the project’s developers were reviewing the decision and will be “expeditiously evaluating the project’s next steps. Should the decision be appealed by MVP, it would first have to do so by asking that the three-judge panel decision by reviewed by all fifteen judges of the Fourth Circuit (en banc). Should that appeal be unsuccessful, MVP could then appeal the decision to the U.S. Supreme Court.
The MVP is also awaiting a Fourth Circuit review of a revised Biological Opinion and Incidental Take Statement issued by the U.S. Fish and Wildlife Service, as well as a permit from the Army Corps of Engineers. A decision by the Corps is anticipated to be announced in coming weeks.
For a copy of Judge Thacker’s decision, click here.