Since FERC issued a certificate of public convenience and necessity for MVP in 2017, the pipeline has been subject to multiple delays due to permitting (see April 7, 2021 edition of the WER). While MVP initially obtained all necessary federal permits, the United States Court of Appeals for the Fourth Circuit vacated all of them over time. After MVP reacquired the necessary permits, it returned to the Commission and requested, among other things, an extension of the initial deadline to complete construction of the pipeline. FERC approved MVP’s request in a series of orders, all of which were at issue in the instant proceeding. Environmental petitioners challenged the Commission’s orders arguing, among other things, that a supplemental EIS addressing erosion and sedimentation controls was needed before construction could resume.
The Court agreed with environmental petitioners, holding that FERC failed to adequately address whether a supplemental EIS was necessary in light of MVP’s sedimentation impacts. Specifically, the Court found that FERC “failed to provide an adequate explanation” for why a supplemental EIS was not needed despite evidence from state environmental enforcement actions against MVP that MVP’s sedimentation controls, which the Commission relied upon in its final EIS, had failed. The Court stated that a supplemental EIS “is necessary not only when the nature of a project’s environmental impacts is significantly different than anticipated, but also when the extent of those impacts is significantly greater than predicted.” As such, because FERC failed to engage with whether the level of sedimentation was substantially different than expected, the Court held that the Commission’s explanation of its decision not to prepare an EIS was arbitrary and capricious.
Notably, the Commission remanded all of the challenged orders without vacating the orders’ approvals to resume construction. The Court explained that while FERC failed to adequately explain its decision not to prepare a supplemental EIS, after adequately accounting for the evidence of sedimentation impacts, the Commission could again conclude that a new EIS is unnecessary. Additionally, the Court stated that because construction of MVP is more than 90% complete, vacating the orders would be “quite disruptive.” As such, the Court determined that remanding the challenged orders without vacatur was appropriate.
The opinion, issued in Case No. 20-1512, can be found here.
