The Circuit Court of Summers County (Robert Irons, J) has granted a temporary stay of construction of the Mountain Valley Pipeline where it is proposed to cross the Greenbrier River in Summers County. The stay request was sought by Greenbrier River Watershed Association, Indian Creek Watershed Association, Ashby Berkley, and Ty and Susan Bouldin.
The plaintiffs claim that the crossing would be in violation of West Virginia’s Natural Streams Preservation Act. The Natural Streams Preservation Act allows the Legislature to designate certain “protected streams” which “shall be administered for the use and enjoyment of the citizens of West Virginia in such manner as will leave them unimpaired for future use and enjoyment as free-flowing streams, and so as to provide for the protection and the preservation of these streams in their natural character.” One of the streams designated by the Legislature is the Greenbrier River.
Under the Act, no one can modify any part of a protected stream unless permitted by the West Virginia Department of Environmental Protection (DEP). In this case the Department did permit the modification of the stream. The groups and citizens appealed this decision to the Environmental Quality Board which upheld the DEP. The groups and citizens then appealed to the Circuit Court of Summers County.
Success in the appeal would be worthless if, however, the stream had already been damaged while the appeal was being heard. To prevent this, the groups and citizens asked for a temporary stay of construction while the appeal was being heard. They argued that they would be denied due process if the construction were allowed to go forward while the Court considered their appeal.
The motion for stay was also filed regarding tree felling on the private property belonging to Ashby Berkley, at which MVP is slated to cross the Greenbrier River in Summers County and a variance request was filed with FERC for an additional workspace on an adjacent property.
The Circuit Court agreed with the groups and citizens. It ordered that there be no construction of the Mountain Valley Pipeline while the appeal was pending.
Attorneys for the Mountain Valley Pipeline argued that it faced a deadline for construction. According to the attorneys, if it didn’t get started by October 15 the water would likely be too high to construct the kind of crossing it had planned. If it could not start by October 15, it expected to not be able to start the crossing before July, 2019.
The judge didn’t buy it. He referred to his experience with litigation over the tree sitters and claims that they would cause delays, the delays would cause the pipeline to miss deadlines, etc. “It was represented that there was a hard deadline,” Irons said. “Well, that deadline got extended for a couple months. It seems to me that these deadlines aren’t really set in stone on this particular project.”
Irons granted the stay in the case and scheduled the next hearing for 10 a.m. Oct. 23 at the Summers County Courthouse.
In reaction to the decision, Leslee McCarty, Founding Member of the Greenbrier River Watershed Association Board said, “Most of the time, we all feel like David going up against Goliath, but Tuesday our slingshot worked, at least for a little while. October 23 will be another test. We believe that the interest shown by the people attending the hearing helped. After the hearing, a DEP employee said to me, ‘You had a friendly judge.’ I said, ‘No, we had a fair judge!'”