68 F.4th 630
D.C. Cir.2023Background
- FERC certified Mountain Valley Pipeline (MVP) in 2017 under the Natural Gas Act after completing an EIS; Environmental Condition 9 required written authorization that all federal permits be obtained before commencing construction.
- MVP began construction in 2018 but multiple federal authorizations (BLM/Forest Service, Army Corps, Fish & Wildlife) were vacated by the Fourth Circuit at various times; FERC twice ordered work paused and later allowed partial resumption.
- State agencies (Virginia, West Virginia) documented numerous erosion and sedimentation control failures, issued violations and fines, and negotiated consent decrees requiring additional controls and monitoring.
- FERC issued a series of orders: First Extension (extend completion deadline to 2022), Resume Work (allow construction outside a 25-mile exclusion zone), Exclusion Zone Order (allow limited work in parts of exclusion zone), and later modifications; petitions for review followed.
- The D.C. Circuit upheld FERC on most claims but found FERC’s explanation for declining to prepare a supplemental EIS addressing unexpected sedimentation inadequate; court remanded for further explanation or a supplemental EIS, but denied vacatur of FERC orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of First Extension Order | Challenge still live despite expiry because it enabled subsequent extension | First Extension expired and was superseded by Second Extension, so claim is moot | Moot — First Extension Order challenge dismissed as moot |
| Jurisdiction under NGA over Exclusion Zone & Second Modification | Commission’s Second Modification rendered Exclusion Zone non-final; must file new petition for modification | Rehearing was deemed denied by operation of law; Exclusion Zone became final and amendments are part of same order | Jurisdiction exists; petition adequately challenges Exclusion Zone as amended |
| Environmental Condition 9 (must have all federal permits before resuming construction) | Condition requires all permits before any further construction resumes | Condition applies only to initial commencement; after construction begins FERC can authorize limited resumption while assessing environmental protection | FERC’s interpretation reasonable and upheld; resumption outside exclusion zone did not violate Condition 9 |
| Bureaucratic-momentum risk from building up to national forest boundary | Partial completion up to forest border will pressure agencies to approve forest crossing | Other agencies already rejected alternative routes; limited resumption does not create undue pressure | Rejected — FERC reasonably concluded no undue bureaucratic momentum here |
| Need for supplemental EIS for blasting | Widespread blasting is new, significant information not analyzed in EIS | Final EIS anticipated blasting impacts; blasting addressed in EIS so supplement unnecessary | Rejected — no supplemental EIS required for blasting (EIS already addressed blasting) |
| Need for supplemental EIS for unexpected sedimentation | State enforcement records and fines show sedimentation impacts exceed EIS predictions, so SUPPLEM EIS required | Deviations due to unpredictable rainfall and state consent decrees address remaining issues; supplement unnecessary | Granted in part — FERC’s explanation was inadequate; remand without vacatur for FERC to prepare SUPPLEM EIS or better explain why one is unnecessary |
Key Cases Cited
- Food & Water Watch v. FERC, 28 F.4th 277 (D.C. Cir. 2022) (context on FERC’s NEPA obligations and pipeline approvals)
- Allegheny Def. Project v. FERC, 964 F.3d 1 (D.C. Cir. 2020) (deemed denial of rehearing and effect of tolling orders)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) (standard for when a supplemental EIS is required)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary-and-capricious review standard under the APA)
- Sierra Club v. U.S. Forest Serv., 897 F.3d 582 (4th Cir. 2018) (vacatur of Forest Service and BLM authorizations for MVP)
- Sierra Club v. U.S. Army Corps of Eng'rs, 909 F.3d 635 (4th Cir. 2018) (vacatur of Corps’ verification under nationwide permit)
- Stand Up for California! v. U.S. Dep’t of Interior, 994 F.3d 616 (D.C. Cir. 2021) (supplemental EIS required only when new information gives a "seriously different picture")
- Black Oak Energy, LLC v. FERC, 725 F.3d 230 (D.C. Cir. 2013) (factors for remand with or without vacatur)
- City of Oberlin v. FERC, 937 F.3d 599 (D.C. Cir. 2019) (disruptive consequences factor in vacatur analysis)