Appeals Court wrestles with NC permit for MVP pipeline
The 4th US Circuit Court of Appeals questioned Tuesday whether North Carolina regulators took proper steps to avoid environmental damage from a planned natural gas pipeline in Rockingham County.
Environmental groups who oppose the Mountain Valley Pipeline’s planned Southgate extension are seeking a stay that would block project construction. The stay would remain in place throughout the appeals process following North Carolina’s November 2025 water-quality permit for MVP Southgate.
Critics oppose a similar permit in Virginia. Appeals Court Judges Roger Gregory, James Wynn, and Stephanie Thacker heard separate arguments Tuesday in lawsuits targeting the permits issued to MVP in the neighboring states.
North Carolina’s water quality certification based on Section 401 of the Clean Water Act applies to a 5.2-mile section of pipeline that would be built in Rockingham County.
The Sierra Club, Appalachian Voices, and 7 Directions of Service oppose the pipeline and the permit. They took their objection to court on Jan. 12.
Derek Teaney of Appalachian Voices pointed during his argument in the North Carolina case toward an earlier 4th Circuit decision related to MVP’s construction of its larger “mainline” pipeline in West Virginia. The company had failed to meet its permit obligations in that state, Teaney argued.
“This court has already held in Sierra Club v. West Virgina Department of Environmental Protection that an agency acts arbitrarily and capriciously when it predicts compliance without explaining why the same measures that failed before will work this time,” Teaney said.
“What MVP and North Carolina are inviting you to do is to consider evidence of their intent beyond what was put on the pages of the paper,” Teaney added. “That is a dangerous precedent to set.”
Taylor Crabtree, special deputy attorney general from the NC Department of Justice, defended the state’s permitting process. He pointed to a permit condition that incorporates compliance with the state Sediment Act, “that is a robust regulatory structure to address precisely the kinds of construction stormwater impacts that we’re talking about here.”
“That’s not present in West Virginia, and it’s a big distinction here,” Crabtree added.
“We are in vigorous agreement with the state that we are obliged — we are bound to comply with those conditions,” said Jeremy Marwell, representing MVP and Duke Energy, which would benefit from the new source of natural gas supply.
“This project is being developed in response to demonstrated need by two utilities in North Carolina that are responding to urgent growth in energy demand,” Marwell said. “There are real consequences to the … energy-consuming public to delaying a project coming online.”
“Among other things, we are trying to provide gas to help Duke to retire coal-fired power plants and to replace it with cleaner-burning gas-fired power plants,” Marwell added.
Wynn cautioned Marwell against making economic arguments in the context of a case about the environment. “It gets into a very fuzzy area,” he said. “It might sound good today, but for many — and you’re talking about the public’s interest — it reaches deeply into our environment.”
Gregory suggested Marwell might have opened “a can of worms.” If judges are going to focus on the future, “we also look to the past in terms of what we have to do perhaps to prevent the same thing from happening and maybe in Virginia and West Virginia, too.”
“When you pick up that coin, you’ve got to realize there’s another side of it, too,” Gregory added. “The real question is has North Carolina done enough to assure that this a new and stronger enforcement question.”
Thacker expressed skepticism about MVP’s pledge to comply with North Carolina’s environmental requirements, “because they pinky-promise they won’t do it again.”
“What’s the rationale for saying that just because someone says they’re going to comply with the plan, they actually will — particularly given the history of noncompliance?” she asked Marwell. “That’s the concern — at least for me.”
Tuesday’s hearing took place more than a month after lawyers on both sides of the dispute submitted written arguments.
“This case involves North Carolina’s issuance of a water-quality certification for a short but vital pipeline segment that will bring natural gas from Virginia into North Carolina, to help two major utilities meet surging energy need,” wrote lawyers representing Duke Energy and Mountain Valley Pipeline in a March 16 court filing. “To minimize impacts, facilities in the Tar Heel State will be 60% collocated in a pre-existing utility right-of-way. And environmental conditions imposed by Respondent the North Carolina Department of Environmental Quality (‘NCDEQ’) under Section 401 of the Clean Water Act are crafted to reflect best practices and meet or exceed North Carolina’s tried-and-true regulatory protections.”
“Petitioners seek the extraordinary remedy of a stay of the Southgate certification pending review,” the court filing continued. “But many of their arguments relate to a different pipeline, built and placed into service years ago outside of North Carolina, by Respondent-Intervenor Mountain Valley Pipeline, LLC. Petitioners advance sweeping and unsubstantiated claims that construction of this ‘Mainline’ caused catastrophic aquatic impacts. And they suggest that any Southgate construction — no matter the project’s minimal footprint, terrain crossed, or stringency of regulation — will have serious, permanent, water-quality impacts.”
“Petitioners draw strained parallels between North Carolina’s certification here, and actions taken by a different state (West Virginia), on a different record, concerning the larger Mainline,” Duke and pipeline lawyers argued. “They would subject NCDEQ’s explanation to a uniquely stringent standard, due to facts (Mainline construction’s alleged non-compliance with other states’ water-quality requirements) outside NCDEQ’s jurisdiction. And although Mountain Valley and NCDEQ agree that the 401 certification ensures that North Carolina’s stormwater, erosion- and sediment-control requirements are enforceable as to Southgate, Petitioners offer a cramped and implausible reading of the certification, perceiving regulatory ‘gaps’ where none exist.”
“Petitioners cannot satisfy the stringent standard for a stay pending review,” the court filing added. “To begin, their hyperbolic account of Mainline construction impacts has been disproven by data and scientific analysis. During and after Mainline construction, regulators collected and analyzed an exhaustive body of data, to determine whether project opponents’ oft-repeated predictions of severe water-quality impacts materialized. The data showed no long-term adverse water-quality impacts from Mainline construction.”
“From their mistaken initial premise about Mainline, Petitioners’ arguments about Southgate veer off-course,” Duke and MVP lawyers added. “NCDEQ addressed concerns about Mountain
Valley’s past compliance with other states’ water-quality requirements. The agency explained why North Carolina’s regulatory framework would protect North Carolina’s waters for the limited facilities there. NCDEQ was not obliged to presume that Mountain Valley would violate the law, or that the state’s proven safeguards would fail.”
“Contrary to Petitioners’ perceived regulatory gaps, NCDEQ’s 401 certification clearly requires compliance with state stormwater, erosion, and sediment-control measures. Petitioners’ alleged irreparable harms are unsupported and mostly temporary, and a stay would sharply undercut the public interest,” Duke and MVP argued in the written brief.
State Justice Department lawyers also responded to the environmental groups’ arguments.
“Petitioners cannot show that they are likely to succeed on the merits of their claims,” according to the government’s March 16 brief. “Petitioners first contend NCDEQ failed to adequately explain its determination that the Project would comply with state water quality standards notwithstanding previous instances of noncompliance associated with another pipeline project. But the agency provided the requisite explanation, and its Certification contains robust compliance conditions that distinguish this case from those on which Petitioners rely.”
“Next, Petitioners assert that NCDEQ failed to incorporate certain requirements as conditions of the Certification,” the state’s brief continued. “Here, Petitioners have simply ignored relevant conditions that require precisely what Petitioners allege is missing from the Certification.”
The environmental groups painted a different picture of the permitting process in a March 6 brief to the 4th Circuit.
“In 2021, this Court concluded that the North Carolina Department of Environmental Quality (‘NCDEQ’) acted arbitrarily and capriciously in failing to provide a reasoned explanation for its decision to deny a permit to Mountain Valley Pipeline, LLC (‘MVP’) for the original proposed Southgate Project,” the pipeline critics’ lawyers wrote. “The saga continues in this matter. The same pipeline. The same agency. A different permitting result (issuance) — but the same defect: a failure to provide a reasoned explanation.”
The motion for a stay indicated that MVP Southgate’s construction work could have started as early as March. “Because of MVP’s change in plans, the irreparable harms associated with construction of Southgate are now imminent,” the environmental groups argued. “This Court has recognized the environmental degradation attendant to Southgate construction in North Carolina,” the environmental groups’ court filing argued. “And, as established by expert engineers from Robinson Design Engineering, that degradation would be long term or even permanent. … NCDEQ’s issuance of the Certification was arbitrary and capricious, leading to a failure to ensure protection of North Carolina’s water quality standards. Consequently, a stay is necessary to prevent irreparable harm from activities authorized by the Certification.”
“Appeals Court wrestles with NC permit for MVP pipeline” was originally published on www.carolinajournal.com.
