Environmental – Court refuses to stay pipeline construction

Where petitioners asked the court to stay the construction of a natural gas pipeline while their challenge to a water quality certification could be heard, but they failed to show that they were likely to succeed on the merits of their claims, their stay motion was denied.

Background

Mountain Valley Pipeline LLC, or MVP, applied for a water quality certification from the Virginia Department of Environmental Quality, or VDEQ, for the Southgate project, a proposed pipeline that will traverse portions of North Carolina and Virginia. VDEQ approved the certification on Jan. 13, 2026.

Petitioners sought review in this court in February. On March 4, they moved for a stay of the certification pending review in light of the impending commencement of construction.

Analysis

Petitioners’ motion does not make a strong showing that they are likely to succeed on the merits of their argument that MVP’s history of noncompliance renders VDEQ’s decision to grant the certification arbitrary and capricious. Certainly, MVP’s past violations are more directly relevant here than in Sierra Club v. N.C. Dep’t of Env’t Quality, No. 26-1044, slip op. (4th Cir. June 11, 2026), where petitioners also sought a stay, because MVP committed violations within Virginia during construction of the main pipeline, whereas that case involved North Carolina.

VDEQ thus has direct experience with MVP committing violations under its own enforcement regime. Additionally, the portion of the Southgate project that will traverse Virginia (about 27 miles) is more than five times longer than the portion falling within North Carolina (about five miles)—though it is still substantially shorter than the segment of the main pipeline that crossed Virginia (over 100 miles).

But VDEQ counteracted those elements by giving a much more detailed explanation for its prediction of future compliance than its counterpart in North Carolina did. VDEQ explained, among other things, that many of MVP’s prior violations occurred due to “2018 precipitation levels that caused erosion and sedimentation issues” and that those precipitation levels “are not expected to repeat, but if they should, that erosion would be limited” because the Southgate project “traverses flatter terrain” than the main pipeline and MVP will “implement additional weather monitoring and other measures.”

Additionally, MVP “made continuous iterative improvements to its erosion and sediment control and stormwater management practices over the course of the nearly six-year period of construction” of the main pipeline, which “are generally incorporated in the approved S&S” agreement. VDEQ noted that it planned to include conditions in the certification requiring MVP “to reimburse [VDEQ] for the costs of hiring third-party inspection services to provide daily inspection activities along the construction right-of-way” and “to fund continuous monitoring by the U.S. Geological Survey” (‘USGS’) “at specified stream crossings.”

And VDEQ explained that the Southgate project “is a smaller diameter pipe installed through less challenging terrain over less distance” than the main pipeline, so “it is reasonable for [VDEQ] to assume” that MVP’s practices—which will incorporate the improvements it made “over the course of construction” of the main pipeline—“will produce better outcomes.”

Petitioners contend that this explanation was arbitrary and capricious because it “downplayed MVP’s history of violating” erosion and sediment requirements. Petitioners ignore VDEQ’s lengthy explanation of the differences it saw between the Southgate project and the main pipeline—differences that, based on this court’s preliminary review, appear to provide a rational explanation for VDEQ’s prediction of a different outcome here.

Petitioners also criticize VDEQ’s reliance on a report prepared by Geosyntec. They overstate that reliance. VDEQ cited the Geosyntec report in passing in its 12-page response to comments about MVP’s alleged past failure to “avoid and minimize impacts to state waters.” VDEQ relied most heavily on the “critical” studies conducted by USGS and Virginia Commonwealth University and simply noted the Geosyntec report as providing “supplemental data.”

Petitioners cite one statement in the lengthy Geosyntec report as flawed and argue that this error renders VDEQ’s entire prediction of future compliance arbitrary and capricious. But they do not explain how the deferential arbitrary-and-capricious standard calls for flyspecking every line of a report that the agency relied upon only tangentially. And in any event, even assuming this court may engage in the line-by-line review petitioners seek here, the court is not convinced.

Petitioners also argue that although VDEQ “recognizes that state erosion and sediment control requirements, including MVP’s Erosion and Sediment Control and Stormwater Management plans” and S&S agreement, “are critical to protecting water quality, nothing in the . . . Certification requires MVP to comply with any of those requirements.” They argue that this failure to include critical conditions rendered the certification decision arbitrary and capricious. But the certification essentially includes this condition.

Motion for stay denied.

Dan River Basin Association v. Virginia Department of Environmental Quality, Case No. 26-1220, June 11, 2026. 4th Cir. (Wynn), from Virginia Department of Environmental Quality. Derek Owen Teaney for Petitioners. Katherine Elizabeth Kulbok for Respondents. Jeremy C. Marwell. VLW 026-2-214. 9 pp.

Full-Text Opinion
VLW 026-2-214