In May, 2020, The Highlands Voice reported on a United States District Court in Montana that had ruled that the United States Army Corps of Engineers had improperly allowed a pipeline crossing of a waterway based upon a nationwide permit which had been improperly issued. Now several environmental groups, including the West Virginia Highlands Conservancy, have invoked the well-known legal principle What’s Good Enough for Montana is Good Enough for West Virginia. They have asked that the Corps not allow stream crossings by the Mountain Valley Pipeline for the same reason.
The Montana case in a nutshell
To cross streams and waterways, a pipeline has to have a permit from the Corps of Engineers. It can either apply for a site specific permit or qualify under what is called a Nationwide Permit. A Nationwide Permit is issued for a class of similar activities; companies like it because it is easier to qualify under a Nationwide Permit than it is to get a site specific permit.
In the Montana case, a pipeline tried to qualify to do stream crossings under the Nationwide Permit. The Court ruled that it could not because the Corps of Engineers had issued the Nationwide Permit without complying with the requirements of the Endangered Species Act. It ruled that the Nationwide Permit the pipeline hoped to rely upon was void.
For details, go to www.wvhighlands.org to find the May issue of The Highlands Voice.
What Has Happened in West Virginia
For a while it looked as if the West Virginia groups could ride on the coattails of the Montana groups. The Court had said that the Nationwide Permit was void for the whole country. Then the Corps of Engineers appealed the decision of the District Court for Montana to the Court of Appeals. As part of that appeal, it asked the Court of Appeals to stay the decision while the appeal was being considered. After the Court of Appeals turned down the request for a stay, the United States Supreme Court stepped in and granted the stay. The ruling remained in effect for the pipeline before the Montana court but not for the rest of the country. No more coattails.
With no more coattails to ride on, the West Virginia groups pursued their own challenge to the Mountain Valley Pipeline, using the same law that had resulted in the pipeline in Montana being blocked. The permits were again stalled.
The most recent moves in this ongoing ping-pong match came this past month. On September 4, 2020 the U.S. Fish and Wildlife Service issued a new biological opinion thus opening the way for approval of the MVP permits. Then, on Friday September 25, 2020 the Army Corps of Engineers issued new permits to allow Mountain Valley Pipeline to cross nearly 1,000 streams along its 303 mile path through West Virginia and Virginia.
Represented by Appalachian Mountain Advocates, West Virginia Highlands Conservancy and co-plaintiffs Sierra Club, the Center for Biological Diversity, the West Virginia Rivers Coalition, Indian Creek Watershed Association, Wild Virginia, Appalachian Voices, and the Chesapeake Climate Action Network requested the Corps stay/hold the permits pending a new legal challenge.
That challenge came on September 28th as plaintiffs filed a Petition for Review with the U.S. Court of Appeals for the Fourth Circuit. The basic claims are twofold: First, all the verifications are unlawful because the Corps violated the Endangered Species Act when it reissued the Nationwide Permit in 2017 (just as in Montana). Second, the instated Huntington and Pittsburgh District verifications are unlawful because they rely on a legally-defective attempt to modify Nationwide Permit 12’s conditions.
What’s the Candy Darter Got to Do with It?
There is one additional feature in the action the groups were pursuing specific to West Virginia: the endangered Candy Darter. Montana is home to big sky and wide-open spaces, not Candy Darters. West Virginia is, including its critical habitat.
The Candy Darter is an endangered species; one of the streams the pipeline wants to cross is part of its critical habitat. Because of this, the groups say that the pipeline developer and the Corps of Engineers have taken inadequate steps to assure the safety of the Candy Darter.
The dispute has to do with how the Mountain Valley Pipeline crosses the Gauley, Greenbrier, and Elk Rivers. The developers initially said that they intended to drill under the rivers and the Corps of Engineers approved that. Now the developers want to use what is called the open-trench method (dam the river, lay pipe across the now dry river bed, then undam the river), Before there could be such a change there would have to be a new evaluation (called a Biologic Opinion) on whether the Candy Darter would be harmed by the construction.