The difference, according to the court, is that West Virginia assumed the pipeline builders would comply with state storm water and water quality requirements despite finding that they had violated both many times.
West Virginia “failed to provide a reasoned explanation as to why it believes MVP’s past permit violations will not continue to occur going forward,” the panel of judges wrote.
Dirty water from pipeline construction sites has also been reported by Virginians along the construction path, and Mountain Valley Pipeline settled with the state for $2.15 million over alleged failures to control sediment and storm water runoff. But Virginia regulators did not find that those failures violated water quality standards, unlike regulators in West Virginia who found dozens of those violations.
“The Agencies considered the relevant data and provided a satisfactory explanation for their conclusion,” the court wrote.
The environmental groups that challenged both permits argued in their briefs that Virginia officials failed to properly evaluate the pipeline’s impact on water quality.
A spokeswoman said the lead company behind the pipeline, Equitrans Midstream, was “disappointed” and “will continue to work … on a path forward to completing this critical infrastructure project safely and responsibly.” In court filings, the company blamed “record rainfall” in 2018 for most of the polluting runoff and said controls have since been improved.
The project, on hold since late 2021, needs approval from both states to move forward with the 303-mile route. The company is also waiting on authorization to cut through the Jefferson National Forest and for approval of its plans for protecting endangered species along the route.
The pipeline has faced so many setbacks in the Fourth Circuit that Sen. Joe Manchin III (D-W.Va.) unsuccessfully tried to make approval of the project a condition of last year’s climate bill. One of his proposals was to move jurisdiction over the project to a different appellate court. The company has also asked for a different set of judges in the Fourth Circuit to hear its cases; that petition was denied.
This story has been updated with comment from Equitrans Midstream.