USCA Case #21-1040 Document #1882938 Filed: 01/29/2021 Page 1 of 29

Consolidated Cases No. 20-1512 and 21-1040

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPALACHIAN VOICES; CHESAPEAKE CLIMATE ACTION NETWORK;

INDIAN CREEK WATERSHED ASSOCIATION; PRESERVE CRAIG; SAVE
MONROE; SIERRA CLUB; WEST VIRGINIA RIVERS COALITION; and
WILD VIRGINIA,
Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
and
MOUNTAIN VALLEY PIPELINE, LLC; EQUITRANS, L.P.; and
GAS AND OIL ASSOCIATION OF WV, INC.,
Movant-Respondent-Intervenors.

PETITIONERS’ EMERGENCY MOTION FOR STAY PENDING APPEAL

Pursuant to Federal Rule of Appellate Procedure 18(a) and Local Rule 27(f),

Petitioners seek a stay of pipeline construction authorized by three Orders issued by

Respondent Federal Energy Regulatory Commission (“FERC”). The first granted a

two-year extension of the Natural Gas Act Section 7, 15 U.S.C. § 717f(c), Certificate

of Public Convenience and Necessity (“Certificate”) for Mountain Valley Pipeline,

LLC’s (“Mountain Valley”) Mountain Valley Pipeline (“MVP”), which would

otherwise have expired on October 13, 2020. Extension Order, Ex. A. The second

lifted a previously-imposed “stop-work” order, authorizing construction to resume

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along all portions of the pipeline route outside of a 25-mile “exclusion zone”

surrounding the pipeline’s crossing of the Jefferson National Forest. Resume-Work

Order, Ex. B. The third allowed construction to resume in 17 miles of the “exclusion

zone,” nearly up to the border of the National Forest. Exclusion Zone Order, Ex. C.1

Together, these orders authorize Mountain Valley to proceed with construction on

all but eight miles of the more than 300-mile route, with attendant harm to land,

water, and property.2

Petitioners request that the Court act on this motion by February 22, 2021.

Mountain Valley represents that, aside from certain limited activities, construction

will not resume prior to that date. Petitioners, Mountain Valley, and FERC have

agreed upon a suggested schedule for briefing, with Responses to be filed by

Monday February 8 and Petitioners’ Reply by February 11.

1
Petitioners intervened in the underlying proceedings and requested timely
rehearing pursuant to 15 U.S.C. § 717r(a). Exs. D, E. Those requests were denied
by operation of law. Exs. F, G. See 15 U.S.C. § 717r(a); Allegheny Def. Project v.
FERC, 964 F.3d 1 (D.C. Cir. 2020) (en banc). This Court has jurisdiction under 15
U.S.C. § 717r(b). FERC subsequently issued an Order addressing arguments made
in the rehearing requests for the Extension and Resume-Work Orders. Ex. H.
Petitioners sought stays of the orders in their rehearing requests, Ex. D at 62, Ex. E
at 6, which were not granted. See D.C. Cir. Rule 18(a)(1).
2
Because, as explained in greater detail below, Mountain Valley lacks
authorization to work in streams and wetlands pursuant to Clean Water Act
(“CWA”) Section 404, 33 U.S.C. § 1344, the orders do not authorize work within
waterbodies.
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Petitioners do not seek a stay of all activities authorized by Mountain

Valley’s Certificate, only new construction. Petitioners recognize that existing

environmental protections will need to be maintained during the pendency of this

litigation in order to prevent further damage to property and the environment.

INTRODUCTION

Mountain Valley is in the process of constructing approximately 304 miles of

new 42-inch diameter gas pipeline across West Virginia and Virginia, requiring it to

cut a 125-foot-wide swath through the dense forests and highly erodible steep slopes

of the Appalachian Mountains. From the start of construction in 2018, the MVP has

been plagued by legal delays of Mountain Valley’s own making. Rushed permitting

processes led the Court of Appeals for the Fourth Circuit to vacate several of

Mountain Valley’s federal permits, leaving the ultimate route and configuration of

the pipeline uncertain. See Exclusion Zone Order, ¶¶3, 4. Seemingly endless

environmental violations have further slowed construction while fouling waters and

land along the pipeline’s route. All the while, the original justification for allowing

Mountain Valley to take private property by eminent domain—that the pipeline was

needed get gas produced in the Appalachian Basin to market—has evaporated.

FERC’s decision to turn a blind eye to these circumstances as it granted an

extension of Mountain Valley’s Certificate and authorized construction to resume

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along nearly the entire the pipeline path was arbitrary and capricious and contrary to

the Natural Gas Act and the National Environmental Policy Act (“NEPA”).

ARGUMENT

Whether to issue a stay pending review turns on “(1) whether the stay

applicant has made a strong showing that he is likely to succeed on the merits; (2)

whether the applicant will be irreparably injured absent a stay; (3) whether issuance

of the stay will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (citation

omitted). Petitioners satisfy all four factors.

I. Petitioners are Likely to Succeed on the Merits

FERC’s orders are reviewed under the Administrative Procedure Act’s

(“APA”) arbitrary and capricious standard. Myersville Citizens for a Rural Cmty.,

Inc. v. FERC, 783 F.3d 1301, 1308 (D.C. Cir. 2015). Findings of fact, such as

FERC’s determination of market need, must be “supported by substantial evidence,”

15 U.S.C. § 717r(b), that “a reasonable mind might accept as adequate to support a

conclusion.” Colo. Interstate Gas Co. v. FERC, 599 F.3d 698, 704 (D.C. Cir. 2010).

Moreover, “[t]he substantiality of evidence must take into account whatever in the

record fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S.

474, 488 (1951). FERC’s compliance with NEPA is also subject to review under the

APA’s arbitrary and capricious standard. Sierra Club v. FERC, 867 F.3d 1357, 1367-

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68 (D.C. Cir. 2017). The Court “shall hold unlawful and set aside agency action,

findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law.” 5 U.S.C. §706(2)(A). An agency’s

decision is arbitrary and capricious where the agency “entirely failed to consider an

important aspect of the problem, [or] offered an explanation for its decision that runs

counter to the evidence before the agency.” Del. Riverkeeper Network v. FERC, 753

F.3d 1304, 1313 (D.C. Cir. 2014).

A. FERC’s Dismissal of Substantial Evidence Showing That Market

Demand for the MVP’s Capacity Has Evaporated Since FERC’s 2017
Certificate Issuance Was Arbitrary and Capricious
FERC’s duty under the Natural Gas Act to ensure that a proposed pipeline

project is needed and will serve the public interest does not end with its initial

approval of the project. See Algonquin Gas Transmission, LLC, 170 FERC ¶

61,144, at ¶9 (2020) (Glick, Comm’r, dissenting). FERC’s construction deadlines

“are an important tool … in ensuring that an interstate natural gas pipeline is

developed in a manner that is consistent with the public interest.” Id., ¶3 (Glick,

Comm’r, dissenting). These deadlines help ensure that FERC’s public interest

determination is not “compromised by significant changes occurring between

issuance of the certificate and commencement of the project.” Constitution

Pipeline Co., 165 FERC ¶ 61,081, at ¶9 (2018). Where projects are long-delayed,

developers must seek extensions of their certificate deadlines, requiring FERC to

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“ensure that the facts, analysis, and rationale regarding a particular proposal [have]

not grow[n] stale.” Iroquois Gas Transmission Sys., L.P., 104 FERC ¶ 61,307, at

¶14 (2003); see also Constitution, 165 FERC ¶ 61,081, at ¶¶16, 17.

As Petitioners explained in their comments in opposition to the extension

request, Ex. I at 7-35, and their Rehearing Request, Ex. D at 12-36, the facts and

rationale supporting FERC’s 2017 finding of market need for the project have not

merely grown stale, but fully decayed.

FERC’s Environmental Impact Statement identified the MVP’s purpose as

“transport[ing] natural gas produced in the Appalachian Basin to markets in the

Northeast, Mid-Atlantic, and Southeastern United States” by delivering 2 billion

cubic feet per day (Bcf/d) of gas “to five contracted shippers via a pooling point at

Transco Station 165.” EIS 1-8, Ex. J. See also Certificate, ¶¶41-42, Ex. K. In its

application, Mountain Valley asserted that the additional 2 Bcf/d of capacity was

necessary to serve growing market demand in the Mid-Atlantic and Southeastern

markets, specifically citing the conversion from coal to gas by electric utilities in

the Southeast as a primary driver of increased demand. EIS at 1-8. Mountain

Valley claimed its pipeline was necessary to “alleviate constraints” on natural gas

production from the Appalachian Basin. Id.

When FERC granted Mountain Valley’s Certificate application in 2017, it

relied on the existence of precedent agreements—contracts for future use of a

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pipeline’s capacity—with the five “anchor shippers” to find market demand for the

project. Certificate, ¶41. One shipper—EQT Energy, LLC, a gas marketing

subsidiary of EQT Corp. (collectively, “EQT”)—held contracts for roughly 65% of

the MVP’s capacity. Id., ¶10.

In the three years since FERC granted Mountain Valley’s Certificate

application, significant new information has drastically altered the landscape

surrounding the pipeline. The market conditions underpinning FERC’s finding that

the MVP was required by the public convenience and necessity no longer exist.

Gas demand and gas production in the relevant markets are declining, leading EQT

to conclude that it no longer wants or needs the MVP’s capacity due to the current

surplus of cheaper pipeline “takeaway capacity” from the Appalachian Basin.

1. Dramatically falling gas demand in the regions to be served by

MVP undermine the rationale for the pipeline

The most directly-accessible market for the gas to be carried by the MVP is

the Southeastern U.S., particularly Virginia and North Carolina, which contain the

terminus of the MVP as well as the terminus of Mountain Valley’s planned MVP

Southgate extension. Transportation of the MVP’s gas to any other region would

require additional transmission contracts with added costs. To the extent that the

demand for energy in this region was increasing in 2017, that is no longer the case.

The U.S. Energy Information Administration (“EIA”) recently projected that total

demand for natural gas in the South Atlantic will decline from 2022 to 2031 and
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will not return to 2022 levels until 2045. Rehearing Request at 15 (citing EIA,

Annual Energy Outlook 2020). Major electric utilities in the region, including

Dominion Energy and Duke Energy, have revised downward their demand

forecasts, a trend that will only accelerate in light of Virginia and North Carolina’s

new clean energy policies. See Rehearing Request at 16-18 (Virginia’s utility

regulator stating that Dominion’s load forecasts “have been consistently

overstated ... with high growth expectations despite generally flat actual results

each year”); id. at 17 (Dominion admitting that “significant build-out of natural gas

generation facilities is not currently viable” due in part to the Virginia Clean

Economy Act of 2020); id. at 22-23 (explaining that Duke subsidiaries have

consistently lowered their load forecasts each year and that demand is expected to

continue to decline in light of North Carolina’s recent clean energy legislation and

Duke Energy’s corporate-wide carbon reduction goals). See also Br. Amicus

Curiae of Virginia in Supp. of Resp’ts 2, U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n, No. 18-1584 (U.S. Jan. 22, 2020), https://bit.ly/3gzK8Rl

(Commonwealth of Virginia arguing that claims of “unmet and growing demand

for natural gas in Virginia and North Carolina … do not withstand scrutiny”). The

same is true for the region encompassing New York, Pennsylvania, and New

Jersey. Rehearing Request at 26 (quoting EIA, Annual Energy Outlook 2020).

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These trends were recently summed up by John McAvoy, CEO of

Consolidated Edison, Inc. (“ConEd”), which holds both an ownership stake in

MVP and contracts for a small portion of the MVP’s capacity. Certificate, ¶10.

McAvoy explained ConEd’s desire to sell its ownership stake in MVP and other

gas pipelines: “We made those investments five to seven years ago, and at that

time we—and frankly many others—viewed natural gas as having a fairly large

role in the transition to the clean energy economy. That view has largely changed,

and natural gas, while it can provide emissions reductions, is no longer ... part of

the longer-term view.” Rehearing Request at 27.

FERC asserts that it considered “compliance with evolving state energy

policies” as part of its original Certificate determination such that they need not be

considered further. Extension Order, ¶19. But FERC, of course, could not have

considered Petitioners’ evidence demonstrating a substantial shift away from

natural gas, because that evidence did not exist in 2017. FERC’s dismissal of this

evidence as an attempt to “re-litigate the issuance of the certificate order,” id., is

thus arbitrary and capricious. And FERC’s statement that “it is speculative to

consider how a state will decide to manage its electric-power fuel sources in the

future,” id., does not excuse its failure to grapple with the immediate and concrete

ways in which the original projected demand for gas that Mountain Valley asserted

necessitated its project has failed to materialize.

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2. Mountain Valley’s precedent agreements no longer provide

reliable evidence of market demand because MVP’s primary
anchor shipper has disclaimed any need for the capacity

In granting Mountain Valley’s extension, FERC—as it did in the original

Certificate proceeding—relied exclusively on the existence of “long-term

precedent agreements for the entirety of the project’s capacity.” Extension Order,

¶18.3 Those contracts no longer provide reliable evidence of the market need for

the MVP, however, given the unequivocal statements of the pipeline’s major

anchor shipper that such capacity is no longer needed.

EQT, which is the largest gas producer in the Appalachian Basin and holds a

large majority of the MVP’s precedent agreements, recently disclaimed any need

for the MVP. On a July 27, 2020, investor call, EQT explained that currently there

exists a “pretty big gap between capacity and supply in the [Appalachian] basin.”

EQT Corp Q2 2020 Earnings Call Transcript, July 27, 2020 (“Transcript”) at 25,

Ex. F to SEIS Motion, Ex. N. The gap is not, however, between excess production

and limited takeaway capacity leading to the “constraints on ... production” that

FERC described in its EIS. EIS at 1-8. Rather, there is currently a 3 Bcf/d surplus

of takeaway capacity from the Appalachian basin, which would only be

3
This Court upheld FERC’s original reliance on the precedent agreements to find a
market demand for the project based on the record before the agency at that time.
Appalachian Voices v. FERC, No. 17-1271, 2019 WL 847199 (D.C. Cir. Feb. 19,
2019) (unpublished).
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exacerbated by addition of the MVP’s 2 Bcf/d. Transcript at 25. Due to flat or

declining future production from the basin, this capacity surplus is not going away.

See Rehearing Request at 31 n.5.

As EQT’s President and CEO Toby Rice explained,

[T]he dynamics that are set up right now is Appalachia is producing

around 32 Bcf a day. We’ve got about call it 35 Bcf a day of local
takeaway …. So, there is a 3 Bcf a day gap between what we are
producing and what we are able to take away. Adding MVP that takes
-- that takes you up to call it 37 Bcf a day. So, you’ve got a pretty big
gap between capacity and supply in the basin. I think you couple that
with the fact that the basin is going to struggle to grow. I mean, you’ve
got all operators saying they’re hanging in a maintenance mode. We’re
also seeing activity levels today, which suggest that this basin is going
to decline. All of that is going to widen the gap of takeaway.

Transcript at 25.

Because the existing pipeline takeaway capacity is available at a

significantly lower cost than the on MVP, EQT is seeking to “lay off,” i.e., sell, its

capacity contracts to save money and increase returns for shareholders. Transcript

at 7 (“[O]ur ability to sell down some or all of our MVP capacity … continues to

present the biggest potential for long-term cost reduction improvement ….”); id. at

9-11 (describing cost savings to company that could be achieved by laying off all

MVP contracts).4 To Petitioners’ knowledge, EQT has yet to find any takers for its

capacity commitments, six months after signaling its desire to offload them.

4
EQT does not see any threat of future production increases in the basin leading to
Mountain Valley’s alleged capacity constraints. Id. at 25.
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The unequivocal statements by MVP’s primary anchor shipper completely

undermine FERC’s ongoing reliance on its previous conclusion that “the contracts

entered into by the shippers are the best evidence that additional gas will be needed

in the markets that the MVP … [is] intended to serve.” See Certificate, ¶41.

In response to this significant post-Certificate issuance evidence, FERC

stated only that “commenters provided no evidence demonstrating that any shipper

intends to cancel its transportation contract.” Extension Order, ¶18. FERC’s

response fails to meaningfully grapple with the fact that there is simply no longer

any need for the MVP’s capacity, three years after Certificate issuance. FERC’s

failure to articulate a rational explanation for why the capacity contracts

nonetheless represent sufficient evidence of market need to find that the Project

continues to be required by the public convenience and necessity renders its

Extension Order arbitrary and capricious. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983).

B. FERC’s Authorization of Construction Activities Despite Mountain

Valley’s Lack of Necessary Federal Authorizations Was Contrary to
Its Certificate and Arbitrary and Capricious
FERC ordered Mountain Valley to cease pipeline construction in October

2019 after the U.S. Court of Appeals for the Fourth Circuit stayed Mountain

Valley’s 2017 Endangered Species Act authorizations. Resume-Work Order, ¶5.

Following reissuance of those authorizations, FERC on October 9, 2020, lifted the

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stop-work order outside of the 25-mile “exclusion zone,” despite the fact that, at

the time, Mountain Valley lacked necessary permits from the U.S. Forest Service

and Bureau of Land Management to cross the Jefferson National Forest and other

federal land, such that the ultimate pipeline route was still subject to change.

Resume-Work Order, ¶22; Sierra Club v. U.S. Forest Serv., 897 F.3d 582, 592 (4th

Cir.), reh’g granted in part, 739 F. App'x 185 (4th Cir. 2018).

Then, on December 17, 2020, FERC authorized construction to resume in

seventeen of the exclusion zone’s 25 miles, nearly up to the border of the National

Forest. Exclusion Zone Order, ¶14. This despite the fact that the MVP’s ultimate

route remained uncertain due to the Forest Service’s ongoing permitting process

and the Fourth Circuit’s December 1, 2020, order staying Mountain Valley’s

stream and wetland crossing permits. See Sierra Club v. Army Corps of Eng’rs,

981 F.3d 251 (4th Cir. 2020).5

FERC’s authorization of construction activities in the absence of these

required federal permits violates Environmental Condition 9 of Mountain Valley’s

Certificate and improperly prejudices the outcome of other agency decisionmaking

processes. Condition 9 states that:

Mountain Valley … must receive written authorization … before

5
Mountain Valley has since stated that it will abandon its twice-rejected attempt to
utilize the streamlined Nationwide Permit 12 and will instead begin the lengthy
individual permitting process for its numerous crossings. January 26, 2021 Letter
from T. Normane to MVP Service List 2, Ex. L.
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commencing construction of any project facilities. To obtain such

authorization, Mountain Valley … must file with the Secretary
documentation that it has received all applicable authorizations
required under federal law (or evidence of waiver thereof).

Certificate, Appendix C (emphasis original).

As Commissioner Glick explained in his dissent to the Exclusion Zone

Order, and as the Fourth Circuit has confirmed in a case involving a substantively

identical condition, the “most logical interpretation”—indeed, the only logical

interpretation—“of that condition is that, to the extent MVP lacks federal permits,

it should not be allowed to begin any construction along the pipeline, including by

recommencing construction that was halted due to court order.” Exclusion Zone

Order, ¶3 (Glick, Comm’r, Dissenting); accord Sierra Club v. U.S. Dep’t of

Interior, 899 F.3d 260, 284 n.11 (Aug. 6, 2018) (explaining that an order vacating

a pipeline permit would redress the petitioners’ injuries because “FERC’s

authorization for [the pipeline] to begin construction is conditioned on the

existence of valid authorizations from [the other federal agencies]. Absent such

authorizations, [the pipeline company], should it continue to proceed with

construction, would violate FERC’s certificate of public convenience and

necessity.”).

Requiring pipeline developers to “obtain all necessary federal and state

permits and authorizations” before commencing construction serves important

purposes. At the time of these orders, the U.S. Forest Service still “need[ed] to re-
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evaluate the feasibility and practicality of having routes that are not on [National

Forest Service] lands.” 85 Fed. Reg. 45863, 45864 (July 30, 2020). Likewise, the

Army Corps of Engineers’ still must determine, among other things, whether less

damaging alternatives to the project, including route variations, exist. See 33

C.F.R. §§ 320.4(a)(2)(ii) (requiring consideration of “the practicability of using

reasonable alternative locations and methods to accomplish the objective of the”

project), 320.4(r)(1)(i) (requiring consideration of “[p]roject modifications to

minimize adverse project impacts,” including “reductions in scope and size” of the

project); see also id. §§ 230.5(j), 230.10(a), (d). Allowing construction to proceed

in the absence of federal authorizations risks impacts to landowners and the

environment that may ultimately prove unnecessary. See FERC, Notification of

Stop Work Order (Aug. 3, 2018), Ex. M (justifying its previous stop-work order by

explaining that FERC “cannot predict when these agencies may act or whether

these agencies will ultimately approve the same route”).

As Commissioner Glick noted, FERC’s contrary argument—that Condition

9 is relevant only when a project developer first begins construction—“is

nonsensical …. If the public interest requires a pipeline to have its ducks in a row

when it first begins construction, [there is] no reason why it is not equally

important to require the pipeline to meet the same condition every time it

recommences construction, especially after having a necessary permit invalidated

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by court order.” Exclusion Zone Order, ¶4 (Glick, Comm’r, Dissenting).

In addition to violating the terms and logic of Condition 9, FERC’s practice

is arbitrary and capricious because it creates “bureaucratic momentum” that places

undue pressure on its sister agencies to approve FERC’s chosen route. See N.

Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1157 (9th Cir. 1988) (“Bureaucratic

rationalization and bureaucratic momentum are real dangers[.]”); Sierra Club v.

Marsh, 872 F.2d 497, 504 (1st Cir.1989) (taking account of “the psychology of

decisionmakers,” the “difficulty of stopping a bureaucratic steam roller,” and the

“deeply rooted human psychological instinct not to tear down projects once they

are built”). FERC cannot predetermine the outcome of the Forest Service and

Bureau of Land Management’s analysis by allowing Mountain Valley to construct

the pipeline so that the “completed segments would stand like gun barrels pointing

into the heartland” of the National Forest lands. Maryland Conservation Council v.

Gilchrist, 808 F.2d 1039, 1042 (4th Cir. 1986) (internal citation and quotation

omitted). FERC’s authorization to construct the MVP up to the edge of stream and

wetland crossings in the absence of CWA Section 404 permits likewise improperly

prejudices the Army Corps and the states, who may impose additional conditions

on or entirely prohibit issuance of those permits pursuant to CWA Section 401, 33

U.S.C. § 1341.

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C. FERC’s Failure to Conduct Supplemental NEPA Analysis Prior to

Granting the Certificate Extension and Resume-Work Orders Was
Arbitrary and Capricious
NEPA regulations require that agencies “shall” supplement an EIS if

“[t]here are significant new circumstances or information relevant to

environmental concerns and bearing on the proposed action or its impacts.” 40

C.F.R. § 1502.9(d)(1)(ii). See also Price Rd. Neighborhood Ass’n, Inc. v. U.S.

Dep’t of Transp., 113 F.3d 1505, 1509 (9th Cir. 1997) (citation omitted) (NEPA

“imposes a continuing duty to supplement previous environmental documents.”).

This duty persists as long as there is “remaining government action [that] would be

environmentally significant,” and the agency maintains “a meaningful opportunity

to weigh the benefits of the project versus the detrimental effects on the

environment.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371 (1989).

Here, significant pipeline construction remains incomplete and FERC’s

consideration of Mountain Valley’s requests for certificate extension and

construction resumption provided a meaningful opportunity to weigh the project’s

environmental impacts. Moreover, significant new information revealed since the

2017 EIS “raises new concerns of sufficient gravity” such that FERC was required

to supplement its EIS. See State of Wis. v. Weinberger, 745 F.2d 412, 418 (7th Cir.

1984).

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In particular, construction impacts to date make clear that FERC’s

determination “that impacts on waterbodies due to sedimentation will be

effectively minimized,” Certificate, ¶176, was incorrect, primarily because FERC

vastly overestimated the effectiveness of mitigation measures designed to reduce

erosion and sedimentation. When the Fourth Circuit invalidated Mountain Valley’s

initial authorization to cross the National Forest, it held that “the Forest Service

acted arbitrarily and capriciously in adopting the sedimentation analysis in

[FERC’s] EIS,” due largely to the fact that the Service’s concerns that the EIS

significantly overstated the effectiveness of erosion control measures were never

adequately resolved. Sierra Club, 897 F.3d at 592-96. The Service proved

prescient, as MVP construction has been plagued by endless failures to control

sedimentation in waterbodies, resulting in impacts far greater than FERC

predicted.

Since April 2018, the West Virginia Department of Environmental

Protection (“WVDEP”) has issued 46 notices of violation to Mountain Valley,

including for violations of state water quality standards for turbidity. Ex. D to SEIS

Motion. The Virginia Department of Environmental Quality (“VADEQ”) filed suit

against Mountain Valley for hundreds of violations of state water quality

requirements, resulting in more than $2 million in fines. Complaint, Paylor v.

Mountain Valley Pipeline, LLC, No. CL18006874-00 (Va. Cir. Ct. Dec. 7, 2018),

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Ex. E to SEIS Motion; see also See VADEQ Press Release, Attorney General

Herring and DEQ File Lawsuit Over Repeated Environmental Violations During

Construction of Mountain Valley Pipeline (Dec. 7, 2018);6 Rehearing Request at

49-50, 56-58 (showing photos of overwhelmed erosion control devices and

extreme sedimentation). These notices of violation constitute only a fraction of the

documented instances of Mountain Valley’s inadequate erosion and sedimentation

controls. See Rehearing Request at 48-50 (citing numerous additional

sedimentation problems, including those documented in Mountain Valley’s status

reports to FERC). FERC’s claim that these failures represent only “slightly

different outcomes than those projected in the 2017 final EIS” that are “not

significant enough to warrant a supplemental EIS,” Resume-Work Order, ¶39, is

simply not supported by the record. Rather, the overwhelming evidence of the

MVP’s inadequate erosion and sediment controls paints “a seriously different

picture of the environmental impact of the proposed project from what was

previously envisioned.” Hughes River Watershed Conservancy v. Glickman, 81

F.3d 437, 443 (4th Cir. 1996). FERC’s failure to prepare a supplemental EIS thus

violated NEPA and rendered its orders arbitrary and capricious. See State Farm,

6
https://www.oag.state.va.us/media-center/news-releases/1341-december-7-2018-
herring-and-deq-file-suit-over-environmental-violations-during-construction-of-
mountain-valley-pipeline

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463 U.S. at 43; Ohio Valley Envtl. Coal. v. Hurst, 604 F. Supp. 2d 860, 901

(S.D.W. Va. 2009) (rejecting agency’s conclusion that aquatic impacts would not

be significant because the conclusion was “based on the success of a mitigation

process whose success is not supported by the [agency’s] analysis”).

II. Petitioners Will Suffer Irreparable Harm Without A Stay

“When a procedural violation of NEPA is combined with a showing of

environmental or aesthetic injury, courts have not hesitated to find a likelihood of

irreparable injury.” Brady Campaign to Prevent Gun Violence v. Salazar, 612 F.

Supp. 2d 1, 24 (D.D.C. 2009) (citing Fund for Animals v. Norton, 281 F. Supp. 2d

209, 221 (D.D.C. 2003)). “Environmental injury, by its nature, can seldom be

adequately remedied by money damages and is often permanent or at least of long

duration, i.e., irreparable.” Amoco Prod. v. Village of Gambell, 480 U.S. 531, 545

(1987).

Petitioners’ members are suffering, and will continue to suffer, irreparable

environmental harm from the construction and operation of the pipeline.

Petitioners’ members own land, recreate, and live near the path of the pipeline and

have interests in land and water resources that would be harmed by construction.7

7
The declarations demonstrating irreparable harm also establish Petitioners’
standing.
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USCA Case #21-1040 Document #1882938 Filed: 01/29/2021 Page 21 of 29

The pipeline cuts right through Kathy Chandler’s homeplace on Bent

Mountain, VA. She has already seen significant deforestation, sedimentation, and

other adverse impacts on her and neighboring properties as a result of pipeline

clearing and grading activities, including to her spring box. Ex. O, ¶¶3, 5, 8-12.

Before-and-after photos attached to her declaration show how the project has

buried the stream near her home in silt. Id. She is particularly concerned because

the streams she has seen filled with sediment flow downstream to habitat for the

endangered Roanoke Logperch. Id., ¶18-20. Those impacts would only be

worsened by pipeline trenching, which is likely to require blasting of her bedrock

aquifer. Id., ¶¶16-17.

Russell Chisolm lives within a few miles of pipeline corridor in the

“exclusion zone.” Although the area has yet to experience heavy construction, he

has nonetheless seen mud slides, heavy sediment deposits into streams, and drained

wetlands. Ex. P, ¶¶4, 7-8. He worries that the scenes of devastation he has seen in

nearby areas of the pipeline corridor where more construction has occurred will

soon be replicated in his backyard. Id., ¶10-11. He also fears an explosion if the

pipeline is put into service. He passes through the MVP’s blast zone daily and is

aware that numerous new pipelines have recently failed with catastrophic results.

Id., ¶15. See also Declaration of David Serriff, ¶¶11-16 (describing impacts to

21
USCA Case #21-1040 Document #1882938 Filed: 01/29/2021 Page 22 of 29

endangered Indiana Bat), ¶¶18-19 (describing impacts from construction in fragile

karst terrain).

III. Other Parties Will Not Be Substantially Harmed By A Stay

In contrast to the real and permanent environmental harms discussed above,

a stay would pose only minimal or temporary injury to FERC and Mountain

Valley. Although FERC has interests in defending its orders, “the effect of an

injunction on these interests seems rather inconsequential.” Ohio Valley Envtl.

Coal. v. U.S. Army Corps of Eng’rs, 528 F.Supp.2d 625, 632 (S.D.W.Va. 2007).

Though Mountain Valley may experience some minor costs associated with

delay, that “economic loss does not, in and of itself, constitute irreparable harm.”

Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985). Moreover, any

harm Mountain Valley would suffer is self-inflicted, a result of its choice to charge

forward with pipeline construction despite lacking numerous mandatory federal

authorizations. See Davis v. Mineta, 302 F.3d 1104, 1116 (10th Cir. 2002).

IV. The Public Interest Favors A Stay

In cases involving preservation of the environment, the balance of harms

generally favors the grant of injunctive relief. See Amoco, 480 U.S. at 545; Nat’l

Wildlife Fed'n v. Burford, 676 F. Supp. 271, 279 (D.D.C. 1985), aff’d, 835 F.2d

305 (D.C. Cir. 1987) (“While granting the preliminary injunction would

inconvenience defendants …, denying the motion could ruin some of the country's

22
USCA Case #21-1040 Document #1882938 Filed: 01/29/2021 Page 23 of 29

great environmental resources—and not just for now but for generations to

come.”). Ensuring Congressional mandates are carried out is always in the public

interest. See, e.g., Johnson v. U.S.D.A., 734 F.2d 774, 788 (11th Cir. 1984); Brady,

612 F. Supp. 2d at 26.

Here pipeline construction impacts to forests, streams, and wetlands, and the

resulting loss of ecological services they provide, constitute injury to the public

interest in protecting natural resources. If construction is allowed to continue it

would defeat the purpose of NEPA, in contravention of the public’s

congressionally recognized interest in fully informed environmental decision-

making, and contravene the Natural Gas Act’s mandate that FERC guard the public

interest. See Exclusion Zone Order, ¶¶4, 5 (Glick, Comm’r, Dissenting).

On the other side of the scale, falling demand for natural gas and the

existence of a surplus of pipeline takeaway capacity from the Appalachian Basin at

lower cost than the MVP, supra at 5-12, undermines any claim that the pipeline’s

capacity is needed to serve the public interest.

CONCLUSION

For the foregoing reasons, Petitioners respectfully request the Court stay all

construction activities authorized by the challenged orders except for maintenance

of environmental protections.

Dated: January 29, 2021

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USCA Case #21-1040 Document #1882938 Filed: 01/29/2021 Page 24 of 29

Respectfully submitted,

/s/ Benjamin A. Luckett

Benjamin A. Luckett
Senior Attorney
Appalachian Mountain Advocates
P.O. Box 507
Lewisburg, WV 24901
(304) 873-6080
bluckett@appalmad.org

Elizabeth F. Benson
Sierra Club
2101 Webster Street, Ste. 1300
Oakland, California 94612
(415) 977-5723
elly.benson@sierraclub.org

Counsel for Sierra Club, Appalachian

Voices, Chesapeake Climate Action
Network, West Virginia Rivers
Coalition, and Wild Virginia

/s/ Julie Gantenbein

Julie Gantenbein
(D.C. Cir. Bar No. 54726)
WATER AND POWER LAW GROUP PC
2140 Shattuck Ave., Suite 801
Berkeley, CA 94704
(510) 296-5588
jgantenbein@waterpowerlaw.com

Counsel for Indian Creek Watershed

Association, Preserve Craig, and
Save Monroe

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USCA Case #21-1040 Document #1882938 Filed: 01/29/2021 Page 25 of 29

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(g) and Circuit Rule 32(e), I certify that this

motion complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)

(A) because the motion contains 5,185 words.

I further certify that this document complies with the typeface requirements

of FRAP 32(a)(5) and the type-style requirements of FRAP 32(a)(6) because this

document has been prepared with a proportionally spaced typeface using Microsoft

Word 2017 in 14-point font size and Times New Roman type style.

Dated: January 29, 2021

/s/ Benjamin A. Luckett

Benjamin A. Luckett
Appalachian Mountain Advocates
P.O Box 507
Lewisburg, WV 24901
(304) 645-0125
bluckett@appalmad.org

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USCA Case #21-1040 Document #1882938 Filed: 01/29/2021 Page 26 of 29

Certificate of Service

I hereby certify that on January 29, 2021, I electronically filed the foregoing

Petitioners’ Emergency Motion for Stay Pending Appeal with the Clerk of the

Court by using the appellate CM/ECF System and served copies of the foregoing

via the Court’s CM/ECF system on all ECF-registered counsel.

/s/ Benjamin A. Luckett

Benjamin A. Luckett
Senior Attorney
Appalachian Mountain Advocates
P.O. Box 507
Lewisburg, WV 24901
(304) 873-6080
bluckett@appalmad.org

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USCA Case #21-1040 Document #1882938 Filed: 01/29/2021 Page 27 of 29

Addendum to Petitioners’ Emergency Motion for Stay Pending Appeal

List of Exhibits to Petitioners’ Emergency Motion for Stay Pending Appeal

Rule 26.1 Corporate Disclosures

USCA Case #21-1040 Document #1882938 Filed: 01/29/2021 Page 28 of 29

Exhibits to Petitioners’ Emergency Motion for Stay Pending Appeal

A. Order Granting Requests for Extension of Time, 173 FERC ¶ 61,026 (Oct. 9,
2020) (“Extension Order”)
B. Order Partially Lifting Stop Work Order and Allowing Certain Construction
to Proceed, 173 FERC ¶ 61,027 (Oct. 9, 2020) (“Resume-Work Order”)
C. Order Partially Lifting Stop Work Orders and Allowing Certain
Construction to Resume, 173 FERC ¶ 61,252 (Dec. 17, 2020) (“Exclusion
Zone Order”)
D. Appalachian Voices et al.’s Request for Rehearing and Rescission or Stay of
Order Granting Requests for Extension of Time and Order Partially Lifting
Stop Work Order and Allowing Certain Construction to Proceed (Nov. 9,
2020) (“Rehearing Request”).
E. Sierra Club et al.’s Request for Stay and Rehearing of Order Partially Lifting
Stop Work Orders and Allowing Certain Construction to Resume, Docket
No. CP16-10-000 (Dec. 18, 2020).
F. Notice of Denial of Rehearing by Operation of Law and Providing for
Further Consideration, 173 FERC ¶ 62,130 (Dec. 9, 2020)
G. Notice of Denial of Rehearings by Operation of Law and Providing for
Further Consideration, 174 FERC ¶ 62,036 (Jan. 19, 2021)
H. Order Addressing Arguments Raised on Rehearing, 173 FERC ¶ 61,222
(December 11, 2020)
I. Appalachian Voices et al.’s Joint Motion to Intervene and Comments in
Opposition to Request for Extension of Time, Docket No. CP16-10-000
(Sept. 11, 2020)
J. Final Envtl. Impact Statement, Dkt. Nos. CP16-10 et al. (June 2017) (“EIS”)
(excerpts)
K. Order Issuing Certificates and Granting Abandonment Authority, 161
FERC ¶ 61,043 (Oct. 13, 2017) (“Certificate”)
L. January 26, 2021 Letter from T. Normane to MVP Service List
M. Notification of Stop Work Order (Aug. 3, 2018)
N. Appalachian Voices et al.’s Motion to Supplement Environmental Impact
Statement (August 27, 2020) (“SEIS Motion”)
O. Declaration of Kathy Chandler
P. Declaration of Russell Chisholm
Q. Declaration of David Serriff
USCA Case #21-1040 Document #1882938 Filed: 01/29/2021 Page 29 of 29

Rule 26.1 Corporate Disclosures

Pursuant to FRAP 26.1 and D.C. Cir. Rule 26.1 Petitioner Save Monroe

discloses that it is a non-profit organization with no parent companies, and there

are no companies that have a 10 percent or greater ownership interest in it.

Save Monroe is a community organization that encourages citizens to

participate in the responsible stewardship of our resources and to actively oppose

projects that threaten the healthy and prosperous future of Monroe County, West

Virginia.

All other Petitioners have previously filed their Rule 26.1 disclosures in

these consolidated cases.