Update on Mountain Valley Pipeline, Questions & Answers, Part 1

Mountain Valley Pipeline Delayed: 4 questions answered
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From an Article by Carlos Anchondo, Energy Wire, E & E News, 10/19/2023
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Completion of the closely watched Mountain Valley Pipeline, MVP, will be delayed until next year, and its cost will exceed $7 billion, the project’s lead developer said Wednesday. The updates from Equitrans Midstream mark the latest twist in the saga of the controversial natural gas project, which received Congress’ blessing earlier this year.

That disclosure arrives after the Supreme Court handed developers of the Mountain Valley pipeline a critical win in July, undoing a construction freeze and allowing work on the gas project to restart. How regulators and courts tackle remaining questions about the project’s safety could still shape its timing — though legal and energy experts don’t expect opponents to be able to stop it.

Earlier this month, the Pipeline and Hazardous Materials Safety Administration and the lead developer of Mountain Valley announced an agreement to address safety issues. That came after an August notice from PHMSA raised concerns about the integrity of the pipe, including issues around installation and prolonged exposure of some segments to the sun’s rays. Pennsylvania-based Equitrans, which will operate Mountain Valley once it is finished, said the agreement outlines measures that are intended to reassure the public of the pipeline’s integrity.

Before the agreement was issued, critics wrote to the Federal Energy Regulatory Commission asking for construction to stop while developers conduct an analysis on all pipes that will be installed and look for any potential damage to its protective coating. But FERC has been approving a number of developer requests, including the addition of temporary access roads and allowing the withdrawal of water from streams for construction use.

FERC has sent letters to Mountain Valley developers approving the company’s requests, citing the June debt ceiling law and the agency’s June order authorizing all construction activities on the pipeline.

For many residents in southwest Virginia, the return of construction is the last thing they wanted. Some told E&E News this summer that they felt betrayed by the inclusion of the Mountain Valley-related provision in the debt ceiling agreement known as the Fiscal Responsibility Act of 2023. The law requires expedited approval for Mountain Valley and blocked judicial review of permits “necessary for the construction and initial operation at full capacity” of the pipeline. Once a major thorn in Mountain Valley’s side, litigation against the project has dwindled.

One case focused on eminent domain — Bohon v. FERC — is still alive in the U.S. District Court for the District of Columbia, but it’s unclear how much of a threat it could present to the pipeline overall.

In a request to the U.S. Court of Appeals for the District of Columbia Circuit this week, the Virginia landowners behind the long-shot suit asked for an emergency injunction to “halt irreparable harm” and stop the taking of land through eminent domain. The landowners requested the freeze on construction while the court takes up their legal challenge.

If Mountain Valley is completed as planned, opponents said the possibility of a leak or an explosion will always linger in the minds of communities along the route. Equitrans has stressed its focus on building and running the pipeline safely.

Natalie Cox, an Equitrans spokesperson, said more than 300,000 miles of natural gas transmission pipelines have been “successfully built and are operating safely” across the United States, including “in steep, mountainous and karst terrain. Pipelines are recognized as by far the safest means for transporting the energy necessary to power modern life,” Cox said in an email last month.

FOUR QUESTIONS & ANSWERS ~ As construction continues and protests occur along the project’s path, here are four questions that remain about the Mountain Valley project:

1. When is the project expected to be completed?

Developers had been planning to complete Mountain Valley by the end of 2023. But on Wednesday, the company delayed its “targeted timing” for finishing project construction to the first quarter of 2024.

Mountain Valley pipeline, or MVP, also revised its total project cost to about $7.2 billion, according to an Equitrans filing with the Securities and Exchange Commission. The cost previously was pegged at $6.6 billion.

Equitrans said the “ramp up of MVP’s contractor workforce has been slower and more challenging than expected, due to multiple crews electing not to work on the project based on the history of court-related construction stops, and the inability to recruit crews with required and sufficient experience.”

Shortly after PHMSA sent the safety notice to Equitrans in August, the agency and the company began an informal consultation process to address safety issues raised in the document. In an analysis for clients that month, the research firm ClearView Energy Partners noted that PHMSA’s notice didn’t require construction on Mountain Valley to stop.

ClearView said developers’ compliance with the agency’s process “may actually be positive for the project in the long run.”

“Active oversight by the safety regulator would appear to proactively rebut argument from the project’s opponents that construction is taking place without careful safety supervision,” the firm said Aug. 14.

On Oct. 4, ClearView told clients that opponents would be “hard-pressed to secure an injunction on construction activity in court at this point by arguing that the safety regulator is not closely overseeing the completion of the pipeline.” ClearView abstained in its note from saying if developers could meet the requirements of the consent order and their planned year-end target.

Equitrans’ Oct. 3 news release said the agreement’s terms “are not expected to have a material impact on the total project cost or schedule.”

Denali Nalamalapu, a spokesperson for the Protect Our Water, Heritage, Rights (POWHR) coalition, said communities affected by projects expect “the utmost transparency” between regulatory agencies and communities.

Nalamalapu, who opposes the project, said activists will “rigorously document” construction activities associated with Mountain Valley “to do what we can to ensure the company is held accountable to environmental and community safety laws.”

In a statement Wednesday after Equitrans’ regulatory filing, Nalamalapu said Mountain Valley is “a fracked gas pipeline blaming workers for why it hasn’t been able to complete the project during a climate crisis.”

Last week, the North Carolina General Assembly and Senate voted to override an Oct. 2 veto by North Carolina Gov. Roy Cooper (D) of H.B. 600 — a bill that would speed up water quality reviews under the Clean Water Act. Opponents of the MVP Southgate project, a proposed 75-mile extension of the mainline Mountain Valley pipeline, applauded Cooper’s veto earlier this month. The Sierra Club asserted that the legislation would “weaken and restrict” a water quality permit, “limiting timelines and opportunities for public input.”

2. What about Mountain Valley’s legal setbacks?

Before the debt ceiling agreement made it to President Joe Biden’s desk, opponents of Mountain Valley felt momentum was on their side after a favorable decision from a federal appeals court. That has now flipped.

“Up until June … I thought we were kind of winning,” said Lois Martin, speaking during an August meeting at the Bent Mountain Center, roughly 17 miles southwest of Roanoke, Va. Martin said she was “just so disappointed with what Congress did.”

Almost five months earlier — in early April — judges of the 4th U.S. Circuit Court of Appeals vacated a key certification from the West Virginia Department of Environmental Protection that Mountain Valley developers needed for crossing bodies of water. The court’s decision jeopardized plans to finish the pipeline known as MVP in 2023, analysts said at the time.

During a company earnings call May 2, Equitrans CEO Tom Karam said that while the “path to an MVP completion during 2023″ was narrower, construction during the summer wasn’t off the table.

Later that month, Sen. Joe Manchin (D-W.Va.) again introduced legislation that would greenlight Mountain Valley. If the 4th Circuit hadn’t vacated West Virginia’s water quality certification, Manchin and Sen. Shelley Moore Capito (R-W.Va.) wouldn’t “have had enough air in their sails” to get expedited completion of Mountain Valley into the debt ceiling deal, said Christi Tezak, a managing director at ClearView, in an interview.

While Manchin had previously tried without success to use legislation to aid Mountain Valley, he found an avenue to complete the project in debt ceiling negotiations. The debt ceiling law stipulates that the D.C. Circuit has “original and exclusive jurisdiction over any claim alleging the invalidity” of Section 324 of the law.

In mid-August, the 4th U.S. Circuit Court of Appeals said the court no longer had jurisdiction to decide pending challenges to Mountain Valley’s permits. At the time, one of three 4th Circuit judges presiding over the Mountain Valley challenges wrote in a concurring option that Section 324 in the debt ceiling law “is a blueprint for the construction of a natural gas pipeline by legislative fiat.”

Section 324 has cropped up before the D.C. Circuit in at least one case involving the Mountain Valley pipeline. It did in Bohon vs. FERC, in which landowners in Virginia sued federal energy regulators over allowing private companies to condemn land. The landowners raised questions about the debt ceiling law’s constitutionality as part of their ongoing lawsuit against federal energy regulators.

Tezak at ClearView said the case doesn’t present much of a threat to Mountain Valley, citing a Supreme Court decision in June 2021 in PennEast v New Jersey. In a 5-4 ruling in that case, the justices said that private companies can seize state-held land for federally approved projects.

While Cletus Bohon of the pending case is a private landowner who will get his day in court, Tezak said, “we think it is more likely than not that he’s not going to win.”

Mia Yugo, a private attorney representing the landowners, said a Bohon “win on the merits” would mean that “private for-profit companies like MVP would not be able to use the Natural Gas Act to acquire the government’s power of eminent domain to forcibly take land for their private, for-profit projects.”

“They would have to buy the land they want in the open market like any other business would have to do or route around the land that property owners refuse to sell,” Yugo said in a recent email. Proceedings in the case remain pending.

TO BE CONTINUED TOMORROW FOR QUESTIONS 3. AND 4.