Pipeline’s supporters, critics offer legal arguments to 4th Circuit

Supporters and opponents of the Mountain Valley Pipeline’s Southgate project are offering arguments for and against a North Carolina environmental permit in briefs this week at the 4th US Circuit Court of Appeals.

A unanimous 4th Circuit panel issued an April 29 decision rejecting critics’ attempt to block the permit for MVP Southgate project during the appeal. Now three environmental groups hope the court will change course when addressing the case’s merits.

“In 2021, this Court held that the North Carolina Department of Environmental Quality (‘NCDEQ’) acted arbitrarily and capriciously when it failed to provide a reasoned explanation for its denial of a Clean Water Act §401 certification to Mountain Valley Pipeline, LLC (‘MVP’) for the original Southgate Extension Project,” lawyers representing the Sierra Club, Appalachina Voices, and 7 Directions of Service wrote Tuesday. “Two years later, this Court vacated MVP’s West Virginia §401 certification for its Mainline project because West Virginia could not provide a reasoned explanation for predicting future compliance in the face of MVP’s extensive record of water quality violations.”

“And in 2023, this Court saved challenges to the Southgate ‘spur’ of the Mainline for another day,” the court filing continued. “Today is that day.”

“The saga continues in this case, with a §401 certification issued by NCDEQ,” the environmental lawyers wrote. “The same company. Nearly the same pipeline. The same agency. A different permitting result (issuance), but the same defect this Court identified in 2021: a failure to provide a reasoned explanation for its decision. And the same applicant whose violation record this Court found dispositive in 2023, but now with an even more extensive record.”

“In the years between this Court’s decisions and NCDEQ’s certification, MVP completed construction of its Mainline project and, as expected, committed additional violations,” the court filing continued. “The West Virginia Department of Environmental Protection cited MVP for violating water quality standards during an open-cut stream crossing in November 2023. Virginia imposed an additional $100,000 in civil penalties for violations that resumed in 2023. And third-party audits found that more than half the streams and ninety percent of the wetlands in the Mainline corridor in West Virginia suffered decreased biological habitat quality scores during or following construction.”

“This was the record of past noncompliance before NCDEQ in the issuance of this 401 certification,” environmental lawyers argued. “And NCDEQ engaged with that record even less than West Virginia had in its own decision-making — decision-making this Court deemed arbitrary and capricious.”

“With the Southgate Amendment Project (‘Southgate’ or ‘the Project’), MVP proposes to construct 5.2 miles of natural gas pipeline across Rockingham County, North Carolina, crossing 29 streams and wetlands (an average of one waterbody every 1,000 feet), using the same open-cut, dry-ditch construction methods that contributed to MVP’s Mainline violation record,” the court filing continued. “Those crossings drain to the Dan River, which American Rivers named one of America’s Most Endangered Rivers of 2026 just three weeks before this brief was filed, citing the construction of Southgate as a primary threat to drinking water supplies for hundreds of thousands of people downstream.”

“NCDEQ certified that Southgate’s discharges will comply with water quality standards,” the court filing added. “The agency did so without engaging with MVP’s violations history, without explaining why the measures it cited as sufficiently protective would prevent recurrences of documented past failures, and without including the very measures it relied upon to justify certification as enforceable conditions. Those are the same errors, independently and in combination, that required vacatur in West Virginia Department of Environmental Protection. The same result is required here.”

State Justice Department lawyers representing DEQ filed a competing brief Tuesday rebutting the environmental groups’ arguments about the water quality permit issued last November.

“Petitioners challenged this Certification asserting two claims: (1) NCDEQ failed to provide a reasoned explanation for the issuance of the Certification notwithstanding MVP’s compliance history in other states on other projects, and (2) NCDEQ failed to include certain necessary conditions. Both claims fail,” state government lawyers wrote.

“NCDEQ included a robust suite of conditions that provide a strong basis for its conclusion that, if MVP complies with those conditions, the Project will not violate water quality requirements,” the state court filing continued. “It discussed these protections in the Hearing Officer Report issued alongside the Certification. Tellingly, Petitioners have never pointed to any condition that they believe NCDEQ should have included to address MVP’s compliance history. Instead, they have argued for a categorical bar that cannot be squared with this Court’s prior [2023] decision in Sierra Club v. West Virginia Department of Environmental Protection.

“As to the necessary conditions that NCDEQ allegedly failed to include, Petitioners first ignore and then argue for an overly restrictive reading of conditions in the Certification that require just what Petitioners say is needed,” state government lawyers wrote. “Paradoxically, Petitioners invoke the rule of lenity and a host of other interpretive canons to argue that MVP is not required to comply with the conditions NCDEQ included in the Certification. Ultimately, these canons cannot overcome the plain text of the Certification.”

“As both NCDEQ and MVP have acknowledged, MVP is bound to adhere to the commitments in its plans and specifications, made enforceable by the plain text of the Certification,” the court filing continued. “No necessary condition has been left out.”

“Because Petitioners have failed to show that NCDEQ acted arbitrarily or capriciously in its issuance of the Certification, NCDEQ asks that the Court uphold the Certification,” state lawyers wrote.

Duke Energy and Mountain Valley Pipeline LLC also addressed the environmental groups’ complaints.

The Southgate project consists of a “short but vital pipeline segment bringing natural gas from Virginia into North Carolina, to help two major utilities meet surging energy demand in a reliable and affordable manner,” the companies argued.

“Petitioners believe that the Department failed to include three necessary requirements as conditions of the Certification,” according to the companies’ brief. “But the relevant requirements follow from the plain text of the Certification’s conditions. Petitioners’ arguments to the contrary are based on clear misreadings of the Certification, and would perceive regulatory ‘gaps’ where none exist.”

“But even if this Court were to conclude that Petitioners have pointed to some arguable ambiguities, Mountain Valley has formally represented to this Court, and reaffirms here, that the Certification does bind it to the requirements that Petitioners are concerned with, and the Department agrees with that interpretation and has confirmed its own intention of enforcing them,” the court filing continued.

“Petitioners’ other claim of error attempts to resurrect years-old concerns associated with construction of Mountain Valley’s ‘Mainline’ project — a separate, much larger pipeline, built in other states under different circumstances,” the companies’ lawyers wrote. “Their well-worn argument has been repeatedly rejected by state and federal regulators and the D.C. Circuit.”

“Here, the Department acknowledged Petitioners’ concern and reasonably explained why it disagreed,” the brief added. “As the Department explained, any history of challenges on the Mainline does not undermine the Department’s expectation that Southgate will not violate North Carolina’s water quality standards. The agency explained how the rigorous protective measures planned for Southgate, combined with North Carolina’s regulatory framework and enforcement authorities, would protect state waters for the limited facilities to be constructed there. That is all that is required under the deferential standard of review.”

“More generally, Petitioners’ account of water quality impacts from Mainline construction is at odds with reality,” the companies argued. “During and after Mainline construction, state and federal regulators collected and analyzed an exhaustive body of data to determine whether project opponents’ oft-repeated predictions of severe water quality impacts materialized. They found no long-term, adverse water quality impacts from Mainline construction.”

“Ultimately, Petitioners appear to believe that no certification can lawfully be issued to Mountain Valley, regardless of the proposed project’s characteristics or the circumstances in which it will be constructed,” the brief continued. “At minimum, they would subject the Department’s explanation to a uniquely stringent standard, based on issues (alleged non-compliance with other states’ regimes during Mainline construction) outside the Department’s jurisdiction. But the Department was not obliged to presume that Mountain Valley would violate the law, or that the state’s proven safeguards would fail. The Department reasonably explained its decision to issue the Certification, and the petition for review should be denied.”

“Pipeline’s supporters, critics offer legal arguments to 4th Circuit” was originally published on www.carolinajournal.com.