The unfinished Mountain Valley Pipeline, a natural gas pipeline across West Virginia and Virginia, has been cast into the national spotlight recently after West Virginia Sen. Joe Manchin made it a condition for his support of his fellow Democrats’ Inflation Reduction Act.
In exchange for voting in line with Democrats on their historic climate and economy bill, Manchin secured support from Democratic leaders and President Joe Biden to back future legislation he plans to introduce that seeks to relax the approval process currently required for natural gas pipelines and other energy infrastructure projects. His wishlist tells Congress to “Require the relevant agencies to take all necessary actions to permit the construction and operation of the Mountain Valley Pipeline”, and that all further lawsuits against the litigation-plagued project be moved out of the local 4th U.S. Circuit Court of Appeals and into the D.C. Circuit Court of Appeals, which is likely to look more kindly upon the pipeline.
So what makes the Mountain Valley Pipeline so important, and why hasn’t it been able to cross the permitting finish line on its own?
What is the Mountain Valley Pipeline?
The Mountain Valley Pipeline is a 303-mile natural gas pipeline that cuts from Wetzel County, West Virginia, south into Virginia. The purpose of the pipeline is to carry natural gas extracted from the Marcellus and Utica Shale formations, which lie under West Virginia and many nearby states, to mid-Atlantic and southeast markets where demand for the energy is high.
The project is a joint venture between a number of energy companies, with Equitrans Midstream as the operator that holds the biggest share of interest. The actual pipeline construction is about 94% complete, but when required restoration work is taken into account, the project is only a little more than half finished. The companies originally intended for the pipeline to be in operation years ago — but the courts have ruled that key pieces of their proposal aren’t legal, which has changed, and continues to change, their plans.
When was it supposed to be completed and why isn’t it done yet?
Construction started on the pipeline in early 2018; it was supposed to be completed by the end of that year, though that date has been pushed back at least three times.
Often, media updates about the pipeline’s progress describe delays as the result of litigation that amounts to little more than red tape and needless hurdles. In fact, pipeline developers keep proposing construction plans that federal judges have repeatedly found don’t comply with important environmental protections.
Developers have run into problems with the permits they need to cross West Virginia forests and waterways; each time, federal agencies have relaxed the requirements to greenlight the pipeline, but citizens have challenged the permits and courts have ruled in their favor. That’s also what happened when the U.S. Fish and Wildlife Service conducted an analysis on the potential threats the pipeline would pose to endangered species: A court ruled that the work was sparse and inadequate.
In that case, federal appellate Judge James Andrew Wynn said in his February decision to invalidate the agency’s endangered species study that the service had failed to consider its own most pertinent research when it came to certain species that Mountain Valley Pipeline could impact. The judge noted that the agency had used more comprehensive research in its analysis of a different project’s impacts on the same species years ago. He also took issue with the fact that the agency didn’t focus its analysis on the actual area the Mountain Valley Pipeline would cross, as is the standard for such studies.
For its part, the company says that its original proposal’s lack of compliance with environmental law isn’t a reflection on them, but on the permitting process, and notes that it has changed a number of aspects of its plan in order to comply.
Equitrans Midstream spokesperson Natalie Cox said in an email that Mountain Valley Pipeline officials have updated parts of their proposal in response to the rulings, some of which are still awaiting review.
“Since inception of the project, Mountain Valley has been, and remains, committed to full adherence of all state and federal regulatory requirements, and matters of non-compliance, at any level, are unacceptable,” Cox said. “We take our responsibilities very seriously and have agreed to unprecedented levels of scrutiny and oversight because we are committed to building and operating this project the right way.”
What was the issue with these water and forest crossings?
The pipeline was planned to cross nearly 600 West Virginia waterways, including the Gauley, Elk, Greenbrier, and Meadow rivers in the southeastern part of the state. But to do that, the company needs a permit from the U.S. Army Corps of Engineers. And in West Virginia, that permit requires construction across any body of water to be done within 72 hours. In the case of those four rivers, it would take much longer.
The Corps took the position that the companies’ proposed alternative water-crossing methods were better environmentally than those that prompted the state requirement in the first place, and that it could therefore waive the requirement.
In response to a legal challenge, the Corps volunteered to suspend the permit for those four crossings for a limited time, but the project’s challengers successfully argued to the U.S. 4th Circuit Court of Appeals that under the agency’s own rules, all of that permit had to be paused.
Crossing a national forest comes with its own rules that pipeline developers didn’t meet. They proposed a path that would cut through about three miles of the Jefferson National Forest in Virginia. But the U.S. Forest Service has a very precise land management planning system that didn’t accommodate the pipeline in the area.
Under federal law, the USFS must have a plan for nearly every acre of a national forest detailing what can be done there and what cannot. A natural gas pipeline wasn’t part of the “can” list for this area, so two separate times when pipeline developers sought the agency’s approval, the USFS tried to amend the acreage plan to include it. In both cases, the 4th Circuit ruled that this was unlawful.
What are the concerns of pipeline opponents?
One major concern for pipeline opponents is that the project will lead to landslides and erosion, and deposit mud and sediment into rivers, streams and wells. According to hydrologist Jacob Hileman, no other pipeline of a similar diameter has been approved across a terrain as steep as the Mountain Valley Pipeline’s path through West Virginia.
Such events could contaminate water that residents use to drink, cook and bathe.
Already, some people living along the route can no longer use their water, and they blame the pipeline. Maury Johnson, who lives in Monroe County alongside a pipeline segment that has been constructed, now cooks with bottled water, washes his dishes at a friend’s house, and takes micro showers, when he takes them at home at all.
“Otherwise I might end up dirtier than when I got in,” he said in a filing with the Federal Energy Regulatory Commission last year.
Johnson, who draws his water from a private well, says that water became too dirty to use since Mountain Valley Pipeline construction in 2018 and 2019. He said operators have installed fences and sediment control devices to try and address this, but that they ultimately did not clear his water. He says several of his neighbors are experiencing similar issues.
In a response to similar allegations from Virginia landowners, the company said it had taken all necessary steps to control erosion.
“Mountain Valley’s erosion and sediment control plans meet all applicable federal and state regulatory requirements as approved by [the Virginia Department of Environmental Quality],” it said.
“To date, and despite constant restatements and repackaging of their arguments, no parties have identified any technical or regulatory flaws in those plans,” it continued.
Another concern is that the pipeline, when operational, could leak and contaminate the wetlands, rivers, and streams it crosses.
Pipeline leaks in the natural gas industry are not uncommon. From 2002 to 2017, Energy Transfer Partners, Sunoco, and their subsidiaries, which run one of the largest pipeline networks in the U.S., reported roughly one hazardous pipeline liquids incident every 11 days, according to a report by Greenpeace and Water Keepers Alliance, which drew from federal Pipeline and Hazardous Materials Safety Administration data. About 12% of those leaks affected surface water or groundwater.
What’s the economic argument?
For Charlie Burd, executive director of the Gas and Oil Association of West Virginia, the biggest risk of all for West Virginia would be dumping the pipeline.
“With families across the nation shouldering record-high inflationary burdens, we need more infrastructure – not less – to deliver affordable energy where it’s needed most,” he said in an email.
Although Burd would not comment on the Mountain Valley Pipeline directly, he said that “the benefits of more West Virginia natural gas transported around the nation and the world are undeniable.” He said it helps our allies who depend on Russian natural gas, generates tax revenue for state and local governments and royalties for residents along the route, and can lead to cleaner air in countries that are moving away from coal.
With no bill introduced yet, it’s not clear how Manchin’s deal to greenlight the pipeline will play out. But Manchin’s office has presented a list of his desired permitting reforms, and has secured the backing of key Democrats to move on related legislation by the end of September.
“Require the relevant agencies to take all necessary actions to permit the construction and operation of the Mountain Valley Pipeline and give the DC Circuit jurisdiction over any further litigation,” reads the final point on Manchin’s list.
The Mountain Valley Pipeline is still awaiting a construction permit extension from the Federal Energy Regulatory Commission. It also needs Forest Service approval, for the third time, of the company’s amended plan to cross the Jefferson National Forest. The Federal Bureau of Land Management needs to sign off as well.
The Fish and Wildlife Service will have to again analyze the possible effects of the pipeline on endangered species.
The pipeline also still needs stream-crossing approval from the Army Corps of Engineers. Although the developers amended their plan in response to the court ruling invalidating its water-crossing permit and no longer need the Corps’ approval on every crossing, they still need it for a significant number of them.
A key aspect of those water-crossing permits is being challenged in the 4th Circuit — and Manchin has explicitly called for all future MVP-related litigation to be settled in the D.C. Circuit, which is the pipeline company’s preference. It is not clear if Manchin intends to transfer the ongoing case, which is expected to be argued this fall.
Whether or not all of Manchin’s desired permitting reforms make it into a final bill, some would change the application of the National Environmental Policy Act of 1970, the major environmental law that got federal agencies to assess environmental impacts in the first place.
For instance, one of Manchin’s provisions calls for having a “lead agency” coordinate inter-agency environmental assessments, seemingly to speed up the total review time. Currently, the primary agency that oversees NEPA and the environmental review process is the White House Council on Environmental Quality. If the council were to coordinate various environmental assessments for a project across agencies, instead of just overseeing them, it could theoretically apply one agency’s findings to another agency’s analysis.
In the case of the MVP, if the West Virginia Department of Environmental Protection concluded that the pipeline would have no adverse impact on rivers where endangered fish are present, the White House council could order the Fish and Wildlife Service to use that data in their analysis. Because the president oversees the White House council, it could open the door to them manipulating data collection, and ultimately the agencies’ conclusions.
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