In a ruling without explanation in response to an emergency appeal by the project developer, the U.S. Supreme Court on July 27 said work to complete the Mountain Valley gas pipeline can proceed. The decision follows an order earlier this month by the Richmond, Va., appeals court to halt restart of work on the much-litigated and delayed $6.6-billion, 303-mile natural gas pipeline in Virginia and West Virginia, after new lawsuits filed by opponent groups.
The appeals court on July 27 heard oral arguments on two suits that claim immediate environmental impacts. The timing and impact of that court decision related to the merits of the pipeline challenges are unclear.
Thomas F. Karam, chairman and CEO of project developer Equitrans Midstream Corp., said in comments on an Aug. 1 second-quarter results call to investors that "we have now resumed forward construction," with completion still targeted for the end of 2023. "Despite all the twists and turns, we are grateful for the timely ruling by the Supreme Court and to be, once again, focused on construction."
He added, "While we don't expect the opposition to give up, we have the highest degree of confidence that we will complete the project. It's ordinary course construction where there could be some weather impact as with any project. But absent some of those extreme conditions, we're fairly confident that we're going to bring [Mountain Valley] into line around year-end."
The firm had claimed in its July 14 motion to Justice John Roberts, who decides issues related to the Richmond appellate court, that the lower court now "lacks jurisdiction" over pipeline legal cases after Congress added a mandate to the June 3-enacted federal debt ceiling law that Mountain Valley be completed. Project construction, while largely finished at that point, according to its developer, has been shut down since 2021.
The Richmond court ordered the temporary pause, with no time frame given, despite language in the debt ceiling law that also curbs pipeline opponent lawsuits and changed the venue for appeals to the court in Washington, D.C.
Equitrans said the halt order "flew in the face of this recent, on-point, and emphatic congressional command that remaining construction of the Mountain Valley Pipeline must proceed without further delay." In a statement after the high court ruling, the developer said it "looks forward" to completing work "in accordance with [its] strict safety standards and environmental requirements of issued permits."
In a July 27 statement reacting to the Supreme Court ruling, the Southern Environmental Law Center said “all the [high court] did today was weigh in on a preliminary stay. The [Richmond court] still has the meat of the case and can grant final relief. We still believe it’s unconstitutional.”
The high court did not previously state that Roberts—who could have acted on his own to overturn or support the halt, or refer the issue for full court review in its next session—had decided on a ruling now from all the justices, despite their current term already ended.
A number of U.S. legislators, including the West Virginia delegation and Republicans in other states, had filed supporting briefs, as did the U.S. Justice Dept. and others.
Equitrans had been set to complete by July 13 construction in progress, but halting new work affected what it said is 20 miles of the pipeline still unfinished—including stream and wetland crossings and work that involves welding, backfilling, restoration and stabilization.
"It is critical that Mountain Valley finish what has been started—particularly in areas where earth disturbance has begun," spokewwoman Natalie Cox said. "These are the types of work that FERC has permitted us to do in the past, as continuing these activities provides better environmental protection than ceasing in-progress work."
She said "Mountain Valley has continued to effectively maintain environmental controls for several years ... [but] those controls are designed to be a temporary protection measure and certain work must continue, to manage and maintain environmental protection."
Debt Ceiling Bill Changed Court Jurisdiction
The Mountain Valley mandate was intended as a political compromise to expedite a project that has become the poster child of battles over U.S. energy policy.
"Unless this decision is promptly reversed, it would jeopardize the natural gas line’s ability to complete construction by year-end 2023," Equitrans Midstream Corp. said in an earlier statement.
The unanimous three-judge appellate ruling came less than two weeks after the Federal Energy Regulatory Commission ordered construction to resume and federal permits granted for construction of the 42-in.-dia pipeline, also okaying all "future modifications" needed to complete work under way since 2017.
The firm said those judges exceeded their authority, but project opponents are equally concerned and vocal about the pipeline's potential environmental harm, as well as construction risks in mountainous terrain and use of eminent domain.
Some claim the debt ceiling bill is unconstitutional.
"Congress’s unprecedented end run around the courts attempted to forgo proper checks and balances and declare the sinking ship that is the MVP a winner," said Sierra Club Executive Director Ben Jealous in an earlier statement. He adds that that legislators "cannot mandate that federal regulators throw caution to the wind — environmental laws are more than just mere suggestions, and must be adhered to."
Multiple Project Impacts
The court halt had shut down work that was just restarting, said Cox. "The first of several forward-construction crews have commenced work along sections of the right-of-way," she told ENR.
Precision Pipeline, a unit of energy contractor MasTec, and pipeline contractor Price Gregory International Inc. are building the line, which Cox says would involve about a 4,500-person workforce and "hundreds" of environmental and other inspectors.
“The construction process includes stringent monitoring by federal, state and local agencies, and MVP personnel to continually evaluate each of the permitted requirements," she says.
The congressional mandate granted to Mountain Valley, however, does not apply to the pipeline’s planned 75-mile, $468-million Southgate extension from southern Virginia into North Carolina, set to have 24-in.-dia. pipe for the first 31 miles, and 16 in.-dia. for the rest. The project website says the proposed route is designed so more than 50% is located in existing transmission corridors.
On the earnings call, an Equitrans executive said the firm "continues to evaluate" Southgate and "is focused on active negotiations with the shipper and a prospective customer regarding refining the project's design, scope and/or timing in lieu of pursuing the project as originally contemplated." Equitrans has a 47.2% ownership interest in Southgate and is set to operate it.
Southgate spokesman Shawn Day says TRC Solutions Inc. has been involved in project engineering, but no general contractor, construction start or in-service dates are set.
The project has applied for a FERC building extension to 2026.
Supporters see the project as needed for state energy security, although it is not favoredd by Gov. Roy Cooper (D). “Southgate pipeline is not in the public interest and the developers have not demonstrated its viability,” says Jessica Sims, a field coordinator for local advocacy group Appalachian Voices.
Safety Standards
Meanwhile, some Mountain Valley line opponents have expressed concern about exposed pipe quality with the extended project delays. In a letter last month to key federal officials, 26 environmental groups urged them "to impose the highest possible safety and environmental standards available ... for construction ... before any ground operations resume. [It] is a very high risk pipeline."
Project spokeswoman Cox contends that "Every piece of pipe that is in the ground has passed inspection and testing; and as construction resumes, the remaining, unburied sections of pipe will be inspected, recoated as necessary, and inspected again prior to being placed into the ditch and backfilled."
She adds that some installed pipe segments are protected by permanent cathodic protection ground bed systems. In other areas with buried pipe, "we have taken proactive measures to install more than 400 temporary cathodic protection ground bed systems that will protect the pipe segments" until they can be connected to the permanent ground beds when the pipeline is completed.
In a posted comment earlier this month, analyst Sheetal Nasta at RBN Energy LLC said high court intervention "would potentially still allow [pipeline builders] to resume construction and complete the project this year," but with their previously stated projection of 4 to 5 months more work ahead, "that .... typically can’t continue during the harsh winter months."
As a result, the analyst speculated that assuming "a protracted legal battle" argued in front of the Supreme Court when its session restarted in the fall would have pushed completion to mid-to-late 2024, "at the earliest."
The text of this article was updated 8/2/23 to reflect new details related to project work and legal status.
