Construction of the Mountain Valley Pipeline (MVP), which was intended to deliver natural gas to West Virginia, has become steeped in litigation. See, e.g., Ken Ward Jr. & Kate Mishkin, “Despite ruling, regulators moving to ease path for Mountain Valley pipeline,” Charleston Gazette-Mail, Oct. 4, 2018. A number of parties have brought suit to stop the project, including West Virginia landowners and various environmental organizations. SeeLaurence Hammack, “A summary of legal actions involving the Mountain Valley Pipeline,” The Roanoake Times, May 8, 2018; SeeKate Mishkin-1, “Landowners facing irreparable harm from MVP, lawyers argue,” Charleston Gazette Mail, Sep. 26, 2018. On Tuesday, the United States Fourth Circuit Court of Appeals “ruled that the U.S. Army Corps of Engineers wrongly approved a permit that allowed MVP to temporarily dam four of West Virginia’s rivers so the pipeline can be buried beneath the streambeds.” Ken Ward Jr., & Kate Mishkin, supra. However, state regulators appear to be moving forward on the pipeline, “rewriting the state construction standards for pipeline river crossings that prompted the appeals court to block the plan.” Id.This article assesses the legal battle surrounding the MVP and possible outcomes based on litigation and legislation.
Efforts to block the pipeline’s progress have been numerous and have arisen many times in the recent past. See, e.g., id.Throughout the MVP’s legal history, when a legal challenge has proven successful in court, West Virginia regulators have repeatedly tried to respond in ways that will allow the pipeline to be completed. See, e.g., id.The $5.5 billion project is anticipated to be finished by the end of 2019, and it was intended to deliver energy along the Atlantic coast. See Kate Mishkin-2, “Construction on Atlantic Coast Pipeline OK’ed again,” Charleston Gazette-Mail, Sep. 17, 2018.
For example, on August 10, the Federal Energy Regulatory Commission (FERC) ordered that MVP construction be ceased because of a Fourth Circuit ruling that vacated “certain federal authorizations required for the projects.” Terry L. Turpin, Letter from FERC to Matthew R. Bley, Re: Lifting of Stop Work Order, FERC, Sep. 17, 2018, available at https://www.documentcloud.org/documents/4895858-Lifted-Stop-Work-Order-ACP.html (last visited Oct. 4, 2018). However, the government issued a revised opinion through the U.S. Fish & Wildlife Service (FWS) on September 11, and new permits to continue the pipeline were issued soon after. See id.
The latest lawsuit challenged preliminary injunctions that were issued to developers and which enabled the MVP to take possession of certain residential properties. See Kate Mishkin-1, supra. Homeowners challenged the process, which would have allowed the project to condemn and take their residences as part of eminent domain. See id.As if on cue, the state’s “Department of Environmental Protection has already been rewriting the state construction standards for pipeline river crossings that prompted the appeals court to block the plan.” Ken Ward Jr. & Kate Mishkin, supra.
The legal controversies surrounding the MVP are myriad and involve both state and federal entities. Several groups have attempted to delay and block the project based upon expert data regarding the environmental impact the pipeline would have. See, e.g., Laurence Hammack, supra. Environmental expert witnesses on both sides have been instrumental. Those parties opposing the project have used such testimony to bolster their arguments regarding the negative effect the MVP has or would have on the environment. See, e.g.,Ken Ward Jr. & Kate Mishkin, supra. On the other hand, both federal and state regulators have modified their environmental requirements and then claimed that the project meets the new rules. See, e.g., id. In so doing, proponents of the pipeline have claimed that expert evidence from various sources indicates that the pipeline has only a minimal risk of environmental harm. See id.
Aside from the environmental debate, the question of cost has been at issue. Seeid. The MVP developers had initially argued that it would carry a price tag of about $3.5 billion and would serve several states along the Atlantic coastline, covering some 600 miles. See, e.g. Matt Combs, “MVP cost to increase nearly a billion dollars,” The Register-Herald, Sep. 25, 2018; SeeKate Mishkin-2, supra. However, more recent estimates have suggested the project may be between $4.9-5.5 billion and cover about 300 miles. SeeMatt Combs, supra; See Ken Ward Jr. & Kate Mishkin, supra. These disparities have been part of the ongoing disputes regarding whether the MVP is a worthwhile endeavor and what its costs and benefits may be. Economic experts and specialists in engineering and construction may offer valuable input on this matter. For their part, MVP developers have blamed the higher costs on their legal opposition, claiming that litigation-related delays are the reason for the higher prices. See, e.g., Ken Ward Jr. & Kate Mishkin, supra.
Experts play an important role in assessing large projects like the MVP. Their input regarding how much energy the project might provide and the number of people it could serve may be developers’ best response to certain criticisms. Opponents of the project have proffered expert opinions to the effect that some of the casualties are unnecessary because the pipeline could find a way to proceed without doing irreparable harm to landowners. SeeKate Mishkin-1.
The MVP is a major undertaking, and opposition to such large projects was inevitable. The back and forth nature of court decisions and regulatory responses appears to be a trend that will continue as the pipeline moves forward. Regardless of where they stand on the matter, interested parties will be well-served by experts in matters that pertain to the environment, economic issues, constitutional matters like eminent domain, and related fields. Attorneys and regulators should accept the guidance of experts and work with such witnesses to improve their arguments and build stronger cases.
Kate Mishkin-1 refers to the September 26, 2018 article. Kate Mishkin-2 is a piece in the same publication from September 17 of this year.