The U.S. Army Corps of Engineers created another delay for the Mountain Valley Pipeline (MVP) when it announced in a February 9 letter that it would not finalize action on a permit for the project to cross rivers, streams and wetlands until a valid Biological Opinion (BiOp) was issued by the U.S. Fish and Wildlife Service, as required by the Endangered Species Act.
The Army Corps’ letter was written in response to a February 4 letter co-signed by Appalachian Mountain Advocates (Appalmad) and Southern Environmental Law Center (SELC) on behalf of their respective clients. In their letter to the Corps, Appalmad and SELC said that as a result of a Fourth Circuit Court of Appeals’ February 3 decision vacating the BiOp for the MVP, the Corps cannot lawfully issue the permits sought for the project, noting that according to precedent: “An agency acts arbitrarily and capriciously when it attempts to support an action with an invalid biological opinion.”
In the Fourth Circuit’s unanimous opinion, Judge James Wynn said:
“We conclude that while the BiOp ably describes the range-wide conditions of the Roanoke logperch and the candy darter, it fails to adequately evaluate the environmental baseline for these species within the action area itself.”
Continuing, Judge Wynn said: “On remand, the Fish and Wildlife Service should consider this mandate carefully, especially given the precarious state of the candy darter.”
The MVP’s future became further clouded when one of its major investor’s, NextEra Corp, said in a February 18 filing with the Securities and Exchange Commission that its review of the project’s status had led the company to determine “that the continued legal and regulatory challenges have resulted in a very low probability of pipeline completion.”
Adding to the MVP’s uncertaint future was an admission by Thomas Karam, CEO of Equitrans Midstram Corp, the principal developer of the MVP, during a February 22 call with investors that mid-summer 2022 was no longer being targeted as an in-service date for the project. When asked whether the MVP would be operational in 2023, Karam said: “I can’t give you any timing.”