Water Quality Certification Vacated

Mountain Valley Pipeline Hits Another Bump in the Road

By John McFerrin

The United States Court of Appeals for the Fourth Circuit has invalidated a critical certification that would have allowed the Mountain Valley Pipeline to cross streams and wetlands in West Virginia.

Background (stop me if you’ve heard this one)

The Mountain Valley Pipeline is a proposed—and partially built—natural gas pipeline that would run south and west from Wetzel County, West Virginia, before ending in southwest Virginia. As proposed, it would be about 304 miles long; about 197 miles would be in West Virginia.

The proposed pipeline would have to cross 591 streams or wetlands within West Virginia. Before it would be allowed to cross streams or wetlands, it would need a permit from the United States Corps of Engineers.  

The authority of the Corps of Engineers to approve stream and wetlands crossings is not unlimited. Under Section 401 of the federal Clean Water Act, federal agencies cannot authorize projects in a state unless that state certifies (called a 401 Certification) that the project will not violate state water quality standards. 

The Corps of Engineers previously approved the stream and wetlands crossings in West Virginia. West Virginia being West Virginia, the West Virginia Department of Environmental Protection certified that the crossings would not violate West Virginia water quality standards. Several groups, including the West Virginia Highlands Conservancy, challenged this certification before the United States Court of Appeals for the Fourth Circuit.

In theory, all these permitting decisions would be complete before construction. In this case, there have been multiple disputes over permitting for the pipeline. At various times, construction has been allowed, particularly for parts of the pipeline that do not cross streams and wetlands. As a result, the pipeline is at least partially complete on about 94 percent of the route and fully complete on about 55 percent of the route.

What Just Happened

            The United States Court of Appeals for the Fourth Circuit vacated West Virginia’s certification that the activities approved by the Corps of Engineers would not violate West Virginia’s water quality standards.

            In vacating the certification, the Court primarily relied, directly or indirectly, on the Mountain Valley Pipeline’s environmental compliance record. Although it did not articulate it this way, the Court first relied upon the famous legal principle “a leopard cannot change its spots.” In the parts of the pipeline that have been built, the Mountain Valley Pipeline’s record has been terrible. There have been multiple violations, hundreds of thousands of dollars in fines, etc. In its certification, the West Virginia Department of Environmental Protection assumed that this particular leopard would, in fact, change its spots. The Court agreed that, while such a change was possible, West Virginia had offered no explanation of why it believed that, in this case, the future would be any different from the past.

            The Court was not impressed with West Virginia’s or the company’s general assurances that things would be different this time. While making general claims that there would be more frequent inspections, West Virginia did not commit resources to these inspections. So far as company inspections are concerned, the company committed itself to fewer self-inspections than it had conducted when it was incurring all these violations.

            Neither did the company commit to any additional measures to control pollution from construction. In this round of approvals, the company had set forth measures that it was confident would control sediment. These included such things as filtration to keep sediment out of streams and prompt reseeding of disturbed areas. The Court pointed out that these were the exact same measures it had committed to before. The result was numerous violations and hundreds of thousands of dollars in fines.  

            There is another old saying about doing the same thing and expecting different results. The Court would not allow West Virginia to certify that there would be no violation of water quality standards without explaining why doing the same thing would, this time, produce a different result.

            The Court also criticized West Virginia’s application of another principle: no harm, no foul or, as West Virginia sees it, not much harm, no foul. West Virginia had concluded that the stream and wetlands crossings would not have “significant adverse impacts to the aquatic ecosystem.” This conclusion is not what regulations require. The regulations require that there be no degradation of state waters. Expecting no “significant adverse impacts” is not enough.

Is it over?

            Of course not. It never is.

            The Court was careful to point out that the Mountain Valley Pipeline’s record of environmental degradation was not an indelible black mark, making it unable to ever get certification. It is something West Virginia must address, which requires West Virginia to explain why it believes that something has changed and that such degradation will not happen again. It is an indication that past sediment control measures were not adequate and that West Virginia has to either impose more effective ones or explain why it did not.

            West Virginia could review this matter again and thoroughly explain why things will be different this time. It could impose more effective environmental controls instead of repackaging the controls that did not work in the past. 

            This dispute will not be over until the Mountain Valley Pipeline and the West Virginia Department of Environmental Protection fully comply with the law. It could also be over if the developers decide that, if it is this difficult to comply with the law, the Mountain Valley Pipeline was not such a good idea to begin with.