January 11, 2021

Wild Virginia Lawsuits: Status Updates and Your Help

By Sarah Fromme

Last week, Wild Virginia Conservation Director, David Sligh, held a virtual meeting to provide the Board of Directors and volunteers with updates on our ongoing litigation. Wild Virginia is currently a party to four lawsuits alongside groups like the Sierra Club and Southern Environmental Law Center. Among these lawsuits are three challenges: to Army Corps of Engineers, U.S. Fish and Wildlife Service, and Federal Energy Regulatory Commission (FERC) actions that directly impact the Mountain Valley Pipeline (MVP); and one challenge to a National Environmental Protection Act (NEPA) amendment by the Council on Environmental Quality (CEQ) that eliminates public input on proposals for environment-impacting projects. A brief summary of our position in each case is below, organized by the parties filed against.

Army Corps of Engineers – Nov. 2020

Violations involving: Clean Water Act (CWA), Endangered Species Act (ESA))

Description: The Army Corps of Engineers issued a nationwide permit for the MVP under the Clean Water Act, which we believe is inappropriate, as the project is likely to have a major environmental impact. MVP must obtain individual permits by state. A similar challenge was raised by petitioners against the Keystone XL Pipeline, and the petitioners’ argument was upheld by the court.

Court: 4th Circuit Court of Appeals 

Update: An injunction now prevents MVP from working in water bodies (streams, wetlands) until the case is decided, which is promising because it means the court believes we have a good argument and that continuing construction would cause irreparable harm, but habitat destruction continues outside of water bodies.

U.S. Fish and Wildlife Service – Nov. 2020

Violations involving: Endangered Species Act (ESA)

Description: The Fish and Wildlife Service, when presented with a permit request for pipeline construction, is required under the Endangered Species Act to issue a biological opinion and “take” statement about impacted species. We believe the opinion and statement issued do not cover all relevant issues. We made a similar assertion in a case filed in September 2019, which resulted in FWS rewriting their reports. The new reports still do not reflect accurate/complete information, and MVP should not be allowed to continue construction until they are corrected and the information is re-reviewed.

Court: 4th Circuit Court of Appeals 

Update: An injunction has not been granted.d.

Federal Energy Regulatory Commission – Dec. 2020

Violations involving: Natural Gas Act (NGA), National Environmental Protection Act (NEPA)

Description: MVP requested an extension of its Certificate of Public Convenience and Necessity (CPCN), which was originally granted by FERC in 2017, and expired in 2020. We believe an extension should not be granted because in the three years it had under its CPCN, MVP failed to obtain all of the permits required (which makes any extension a violation of the NGA in addition to the CPCN itself). An extension would also violate NEPA, because FERC has not conducted a proper review of changed circumstances and new information that have developed since 2017.

Court: DC Circuit Court of Appeals

Council on Environmental Quality – July 2020

Violations involving: National Environmental Protection Act (NEPA)

Description: The CEQ, a division of the President’s Executive Office, has amended NEPA to broaden the categories of projects excluded from requirements for public comment. This limit on public input is a violation of NEPA, and we believe the CEQ did not follow the procedures set forth in NEPA when they amended the rules, therefore the amendment should be invalidated.

Court: Federal District Court for West Virginia

The ever-present mission of Wild Virginia is to protect and connect Virginia’s wild places. Where possible and productive, we work with parties, including agency officials, legislators, and others to improve and develop regulations protecting wild spaces, but in our efforts to protect the places we love, litigation is sometimes a necessary tool, to hold regulatory agencies accountable when they violate rules (and in some cases, when they violate rules they created!). Before we decide to get involved, Wild Virginia board members conduct a thorough review of each proposed challenge and consider whether it aligns with our mission and whether we will be able to provide a meaningful contribution. 

Over the past few years, we have been involved in 14 separate cases challenging actions that violate the Natural Gas Act, Clean Water Act, Endangered Species Act, and NEPA, and we’ve had a number of successful outcomes including injunctions (where pipeline developers are ordered to STOP construction), gaining access to information through Freedom of Information Act (FOIA) requests, forcing closer analysis of environmental impacts and, most notably, contributing to the termination of the Atlantic Coast Pipeline project.

WHAT CAN YOU DO?

Members also have a powerful tool they can employ to help with these efforts, and that is your VOICE! We encourage and help you to stay informed about proposed legislation, permitting processes for projects that will affect habitats, and the day-to-day actions of key regulators, and to speak up when you have a concern about your wild spaces. We provide specific guidance to help you navigate complicated government processes and develop comments that can be effective and which decision makers are obligated to consider. Whether you hike in protected forests, fish or swim in protected waters, or just appreciate the diversity of wildlife around you, you have an important and protectable interest in keeping those spaces safe from harm under the law. “I like to hike here” is a very important statement. Your input matters! Below are resources to help you stay informed and empowered in making your voice heard.

Protecting Virginia’s Water

Connecting Wildlife Habitat

Wild Virginia Reports & White Papers

Become a Wild Virginian