How the Mountain Valley Pipeline has Continued to Survive its Legal Troubles

By: Dominic Miranda

Edited by: Sarah Wachs and olivia Paik

The Mountain Valley Pipeline (MVP) by Mountain Valley Pipeline LLC is a developing 303-mile-long natural gas pipeline that will operate from northwestern West Virginia to southern Virginia. [1] The Federal Energy Regulatory Commission (FERC) is the primary regulatory body of the pipeline because it crosses state lines. [2] The LLC also later reached an agreement with the FERC to add a 75-mile extension south that extends into central North Carolina, called “Southgate.”[3] Construction for the main segment of the pipeline began in 2018 upon receiving authorization under the 1938 Natural Gas Act and receiving its Certificate of Convenience and Necessity from the FERC. [4] Since the project’s proposal, activists concerned with potential environmental harm have heavily scrutinized and challenged the LLC and the FERC, while numerous fines were levied against the LLC for various violations. 

Some early examples of such obstacles to the project’s completion are the array of permit violations found at their facilities through several inspections made by West Virginia’s Department of Environmental Protection (WVDEP) in 2018. [5] Many of the infractions were categorized as a failure to uphold sanitation or safety standards including “land disturbances,” failing to “prevent sediment-laden water from leaving the station,” and “improperly installing water bars/slope breakers.” [6] Despite not following many of the terms and conditions of their permit, they were allowed to continue on with the project by paying these fines and meeting even more criteria to ensure they would uphold the required sanitation standards. However, after bearing witness to the environmental impact of the mainline construction in 2020, North Carolina decided to not award a water permit to the MVP developers. Moreover, North Carolina reissued their decision after the LLC appealed, with the United States Court of Appeals for the Fourth Circuit affirming the decision. [7]

Even before the LLC received construction permits and licenses in 2017, they encountered plenty of legal challenges, but successfully escaped. MVP faced a constitutional challenge from landowners, labeled as Berkeley, who claimed that the FERC’s decision to grant them eminent domain through the Natural Gas Act and a Certificate of Public Convenience and Necessity violated the 5th amendment, citing insufficiently administered tests in order to confirm a public purpose for the project. [8] A U.S. District Court denied the motion for an injunction on the construction of the project on the grounds that this Court did not have jurisdiction, which an appellate court affirmed and for which the Supreme Court refused to grant a writ of certiorari. [9] Similar cases from around this time include Sierra Club v. U.S. Army Corps of Engineers, Bold Alliance et al. v. FERC et al., Mountain Valley Pipeline, LLC v. Simmons et al., and Mountain Valley Pipeline, LLC v. Easements; in each of these cases, the MVP LLC had an involvement in claims against their right to use others’ property for construction, but in the end, were able to exercise eminent domain successfully. [10] The common idea is that many of the property owners refused to give up their land and either the MVP LLC or the property owners took it to the courts to sort out the disagreement. However, as of 2020, all of these cases were settled with various federal courts affirming FERC’s authority to grant MVP eminent domain, citing that they pass tests like the Winter four-pronged test which proves that MVP project essentially provide enough of a public benefit when given access to this land and are significantly harmed when not. [11] The courts mostly took this project as a public good; they felt that the MVP project adequately fulfilled these requirements to be considered viable and that giving them access to these properties was essential to provide the public with access to the gas. The LLC has done everything in their power to prove that the pipeline is something that is in the best interest of the public, and this has likely contributed to their continued survival.

In 2022, West Virginia senator Joe Manchin reached an agreement with Congress to make preliminary provisions for a bill to “[streamline the] process for authorizations and reviews of energy and natural resources projects.” [12] This act is part of the government’s energy independence and inflation reduction movement. [13] The intention was to lower energy costs by allowing natural gas to reach eastern coastal states in the US and reduce reliance on foreign trade. Enacting a law like this sends a message to the activists and challengers that the government is on the side of MVP, and lawsuits will likely receive some political backlash and heavy pressure from the opposition, potentially dissuading groups from suing MVP. 

Last year, the LLC seemed to have secured its most significant win yet through the official congressional approval of its project and support intended to close the book on all further legal challenges. In June of 2023, President Biden signed the Fiscal Responsibility Act of 2023, which contains clauses in direct and explicit support of the pipeline in its section 324. [14] The act essentially serves as a shield from any further litigation, as it directs jurisdiction to the U.S. Court of Appeals for the District of Columbia Circuit for any claims made about the section since it “‘ratifies and approves all authorizations, permits, verifications, extensions, biological opinions, incidental take statements, and any other approvals or orders issued pursuant to Federal law necessary’ for constructing and operating MVP.” [15] This act was signed by the President with intentions to expedite the process for the pipeline that originally began construction in 2018, yet remained unfinished and with issues to resolve. Further, another roadblock was evaded in July 2023 when the US Court of Appeals for the Fourth Circuit granted a stay on construction to “consider the constitutionality of the act,” but was subsequently saved on July 27, as “the Supreme Court granted an emergency application from MVP’s developer to vacate the stays of the Fourth Circuit, allowing construction to resume.” [16] It appears that the Supreme Court saw many of these lawsuits as redundant, since this project had already been attacked in every way conceivable. This decision was seen as a major win for the pipeline. 

In August, the Fourth Circuit denied challenges to federal authority in granting permission to the MVP LLC to continue construction, stating that there was “no longer a live controversy” after Congress passed Section 324 .[17] It was evident from this decision that the Fourth Circuit believed that the project should continue at this point and that any extra legal entanglements would be unnecessary after the passage of the Fiscal Responsibility Act of 2023. In October, property owners in Franklin, Montgomery and Roanoke counties in North Carolina decided to file an emergency injunction request to stop construction on their properties after having their 2020 lawsuit against the FERC dismissed, but were denied by the U.S. Circuit Court of Appeals for the District of Columbia. [18]

Despite the passage of the act and dismissal of lawsuits, construction was still slowed due to protestors who “coordinated with others to illegally attach themselves to the land and construction equipment.” [19] The 932-day sit lasted from 2019 to 2021 and led the LLC to sue two of the protestors to sustain their legal battles. [20] This marked a particularly slow and uneventful period in the development of the project as they were unable to get any real construction done. The MVP LLC claimed that their right to build on these lands, granted through the Fiscal Responsibility Act, was violated by these protestors, and they sought to use this right to gain financial compensation for the massive delays caused by the protestors. [21] 

Finally, in February 2024, a U.S. Court of Appeals for the D.C. Circuit dismissed a secondary appeal for the same 2020 case relating to the legitimacy of MVP’s eminent domain status from families across three counties in Virginia. [22] The group of families decided to challenge the authority of the FERC once again but was swiftly denied by the same court that denied their October injunction requests. This lawsuit is similar to those decided prior to 2020 that were previously listed involving Sierra Club, Bold Alliance, and others. It appears that the pipeline will be functional soon, maybe as early as the end of the first quarter of 2024, but a statement from the landowners’ counsel proves that the legal battles will not end here and that they will continue to weigh their options. [23] Despite the years of continued attempts at preventing this pipeline from being built and operated, the MVP LLC has managed to work through the adversity by way of their financial backing, support from the government, and continued perseverance by the project developers. 

Notes:

1. Mountain Valley Pipeline, LLC. "Mountain Valley Pipeline Project." Last updated 2024. https://www.mountainvalleypipeline.info/.

2. Mountain Valley Pipeline, LLC. "Mountain Valley Pipeline Project."

3. MVP Southgate. "MVP Southgate." Accessed February 22, 2024. https://www.mvpsouthgate.com/.

4. Mountain Valley Pipeline, LLC. "Mountain Valley Pipeline Project."

5. West Virginia Department of Environmental Protection. "MVP LLC Signed Order." Last updated March 7, 2023. https://dep.wv.gov/pio/Documents/MVP%20LLC%20SIGNED%20ORDER.pdf.

6. West Virginia Department of Environmental Protection. "MVP LLC Signed Order." 

7. North Carolina Department of Environmental Quality. "State Reissues Denial of Water Quality Certification for MVP Southgate Pipeline." April 29, 2021. https://www.deq.nc.gov/news/press-releases/2021/04/29/state-reissues-denial-water-quality-certification-mvp-southgate-pipeline.

8. Chloe Marie. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 2." Penn State Agricultural Law, accessed February 22, 2024. https://aglaw.psu.edu/shale-law-in-the-spotlight/mountain-valley-pipeline-overview-of-litigation-regarding-the-pipeline-construction-part-2/.

9. Chloe Marie. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 2."

10. Chloe Marie. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 3." Penn State Agricultural Law, accessed February 22, 2024. https://aglaw.psu.edu/shale-law-in-the-spotlight/mountain-valley-pipeline-overview-of-litigation-regarding-the-pipeline-construction-part-3/.

11. Marie. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 3." 

12. U.S. Senate Committee on Energy & Natural Resources. "Comprehensive Permitting Reform Text." Accessed February 22, 2024. https://www.energy.senate.gov/services/files/EAB527DC-FA23-4BA9-B3C6-6AB108626F02.

13. U.S. Senate Committee on Energy & Natural Resources. "Comprehensive Permitting Reform Text." 

14. Paul W. Parfomak and Adam Vann. "Report IN12032." Congressional Research Service, accessed February 22, 2024. https://crsreports.congress.gov/product/pdf/IN/IN12032.

15. Parfomak and Vann. "Report IN12032." 

16. Parfomak and Vann. "Report IN12032." 

17. Clark Mindock. "U.S. Appeals Court Rejects Challenge to Mountain Valley Pipeline." Reuters, August 11, 2023. https://www.reuters.com/legal/us-appeals-court-rejects-challenge-mountain-valley-pipeline-2023-08-11/.

18. Matt Busse. "Judges Deny Landowners' Emergency Request to Halt Mountain Valley Pipeline Work." Cardinal News, October 25, 2023. https://cardinalnews.org/2023/10/25/judges-deny-landowners-emergency-request-to-halt-mountain-valley-pipeline-work/.

19. Clark Mindock. "Mountain Valley Pipeline Sues Protesters Obstructing Construction." Reuters, November 10, 2023. https://www.reuters.com/legal/litigation/mountain-valley-pipeline-sues-protesters-obstructing-construction-2023-11-10/.

20. Matt Dhillon. "Tree Sitters Removed from Mountain Valley Pipeline Path." The Appalachian Voice, April 16, 2021. https://appvoices.org/2021/04/16/tree-sitters-removed-mvp/. ; Mindock. "Mountain Valley Pipeline Sues Protesters Obstructing Construction."

21. Mindock. "Mountain Valley Pipeline Sues Protesters Obstructing Construction." 

22. Matt Busse. "Southwest Virginia Landowners' Mountain Valley Pipeline Lawsuit Dismissed Again." Cardinal News, February 14, 2024. https://cardinalnews.org/2024/02/14/southwest-virginia-landowners-mountain-valley-pipeline-lawsuit-dismissed-again/.

23. Busse. "Southwest Virginia Landowners' Mountain Valley Pipeline Lawsuit Dismissed Again."

Bibliography:

Busse, Matt. "Judges Deny Landowners' Emergency Request to Halt Mountain Valley Pipeline Work." Cardinal News, October 25, 2023. https://cardinalnews.org/2023/10/25/judges-deny-landowners-emergency-request-to-halt-mountain-valley-pipeline-work/.

Busse, Matt. "Southwest Virginia Landowners' Mountain Valley Pipeline Lawsuit Dismissed Again." Cardinal News, February 14, 2024. https://cardinalnews.org/2024/02/14/southwest-virginia-landowners-mountain-valley-pipeline-lawsuit-dismissed-again/.

Dhillon, Matt. "Tree Sitters Removed from Mountain Valley Pipeline Path." Appalachian Voices, April 16, 2021. https://appvoices.org/2021/04/16/tree-sitters-removed-mvp/.

Marie, Chloe. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 2." Penn State Agricultural Law, accessed February 22, 2024. https://aglaw.psu.edu/shale-law-in-the-spotlight/mountain-valley-pipeline-overview-of-litigation-regarding-the-pipeline-construction-part-2/.

Marie, Chloe. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 3." Penn State Agricultural Law, accessed February 22, 2024. https://aglaw.psu.edu/shale-law-in-the-spotlight/mountain-valley-pipeline-overview-of-litigation-regarding-the-pipeline-construction-part-3/.

Mindock, Clark. "Mountain Valley Pipeline Sues Protesters Obstructing Construction." Reuters, November 10, 2023. https://www.reuters.com/legal/litigation/mountain-valley-pipeline-sues-protesters-obstructing-construction-2023-11-10/.

Mindock, Clark. "U.S. Appeals Court Rejects Challenge to Mountain Valley Pipeline." Reuters, August 11, 2023. https://www.reuters.com/legal/us-appeals-court-rejects-challenge-mountain-valley-pipeline-2023-08-11/.

Mountain Valley Pipeline, LLC. "Mountain Valley Pipeline Project." Last updated 2024. https://www.mountainvalleypipeline.info/.

MVP Southgate. "MVP Southgate." Accessed February 22, 2024. https://www.mvpsouthgate.com/.

North Carolina Department of Environmental Quality. "State Reissues Denial of Water Quality Certification for MVP Southgate Pipeline." April 29, 2021. https://www.deq.nc.gov/news/press-releases/2021/04/29/state-reissues-denial-water-quality-certification-mvp-southgate-pipeline.

Parfomak, Paul W., and Adam Vann. "Report IN12032." Congressional Research Service, accessed February 22, 2024. https://crsreports.congress.gov/product/pdf/IN/IN12032.

West Virginia Department of Environmental Protection. "MVP LLC Signed Order." Last updated March 7, 2023. https://dep.wv.gov/pio/Documents/MVP%20LLC%20SIGNED%20ORDER.pdf.