A three-judge panel of a federal appeals court has denied an emergency injunction request from six Southwest Virginia landowners to halt Mountain Valley Pipeline construction activity on their properties.
The court order, filed late Tuesday afternoon by Judges Cornelia Pillard, Robert Wilkins and Justin Walker of the U.S. Circuit Court of Appeals for the District of Columbia, did not offer details behind the decision.
The landowners’ attorney, Mia Yugo of Roanoke law firm Yugo Collins, noted in an email to Cardinal News on Wednesday that an injunction request can be appealed immediately.
“We’re evaluating all options,” Yugo said.
Mountain Valley Pipeline spokesperson Natalie Cox declined to comment Wednesday on the decision, citing the fact that the landowners’ larger federal lawsuit is still pending.
That lawsuit centers on properties owned by Cletus and Beverly Bohon in Montgomery County, Wendell and Mary Flora in Franklin County, and Aimee and Matt Hamm in Roanoke County.
The three couples are suing the Federal Energy Regulatory Commission and Mountain Valley Pipeline and have argued for nearly four years that Congress improperly delegated the legislative power of eminent domain to the commission, a federal agency.
FERC regulates the construction of interstate gas pipelines and in late 2017 authorized Mountain Valley, under the federal Natural Gas Act, to use eminent domain to seize land to build the pipeline.
In their Oct. 16 emergency request, the landowners accused FERC and Mountain Valley Pipeline of requesting delays so that the case won’t be heard until after the land is “irreparably damaged.” Most recently, the court granted FERC’s request to have more time to file certain legal briefs, giving FERC and Mountain Valley until Nov. 13 to do so.
In a follow-up filing Monday, the landowners accused Mountain Valley Pipeline of escalating construction activity since Oct. 16 in retaliation against the landowners for their emergency request.
“The delays are nothing but shameless stall tactics by two extremely capable litigants — surrounded by armies of lawyers — who are trying to run out the clock by manipulating the judicial process,” Monday’s filing stated.
The landowners’ emergency motion sought to keep work crews from “accessing or entering their private property, constructing, blasting, tree-clearing, building, or performing any other activities” related to the pipeline.
“Bulldozers are on the property. Smoke can be seen rising over the land. … With each delay, Landowners suffer irreparable injury to private land being seized for private gain,” the Oct. 16 filing stated, with both instances of the word “private” underlined.
FERC opposed the landowners’ motion and argued, among other points, that its orders approving the pipeline have been finalized for years and it’s too late to challenge them.
Mountain Valley also opposed the motion, calling it an “extraordinary, thirteenth-hour request.” It argued that the Fiscal Responsibility Act — which Congress passed earlier this year to keep the government from defaulting on its financial obligations but which also contained provisions fast-tracking the Mountain Valley Pipeline — removed the court’s jurisdiction to hear challenges to the company’s FERC authorization.
Mountain Valley also said most of the tree-cutting and other work related to clearing the pipeline’s right of way is already complete and the remaining work on the landowners’ properties “will be focused on assembling the pipeline, digging the trench, installing the pipeline, backfilling the trench, and re-contouring and restoring the soil.”
“That work will be done in strict compliance with rigorous environmental and safety protocols,” Mountain Valley Pipeline said in a filing Friday.
A federal judge in the D.C. Circuit had previously dismissed the landowners’ case, citing a lack of jurisdiction, but the landowners appealed to the U.S. Supreme Court, which sent it back to the appellate court in April.
It’s now the last court case remaining among multiple challenges over the years to the controversial, 303-mile natural gas pipeline that runs from West Virginia through part of Southwest Virginia.
Besides objecting to the pipeline’s use of eminent domain, opponents have said the project is unnecessary, unsafe and harmful to the environment. Previous court cases have focused on the pipeline’s impact on federally protected endangered species and national forests.
Supporters have hailed the pipeline as a critical piece of domestic energy infrastructure to help transport natural gas from Appalachian shale deposits to mid- and south Atlantic U.S. markets, meeting a market need and boosting the nation’s energy security.
The Fiscal Responsibility Act that President Joe Biden signed into law June 3 ordered government agencies to approve any remaining permits necessary to complete the pipeline and shielded those permits from further legal challenges.
About two months later, a Richmond-based federal appeals court dismissed environmental groups’ lawsuits against the pipeline, saying that law had removed the court’s jurisdiction over the cases.
Last week, the company with the largest stake in the joint Mountain Valley Pipeline project, Pittsburgh-based Equitrans Midstream, said in a filing with the U.S. Securities and Exchange Commission that the pipeline will be more expensive and will come online later than previously estimated.
The pipeline now is expected to cost $7.2 billion, up from a previous recent estimate of $6.6 billion and more than twice the initial budget of $3.5 billion. The pipeline was first announced in 2014 and initially was expected to be complete in 2018 but has been delayed by years of legal and permitting challenges.
Equitrans Midstream also said the pipeline will be up and running in the first quarter of next year, rather than by the end of this year as it has previously stated.