Mountain Valley Pipeline Opponents Slapped Down 16 Times by Court

cost of renewables - Tom ShepstoneTom Shepstone
Natural Gas NOW

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Well financed Mountain Valley Pipeline opponents have been rebuffed, slapped down and taken to the woodshed by the DC Court of Appeals – sixteen times.

Mountain Valley Pipeline opponents are in debt to some big-money funders who have financed their lawsuits. The Chesapeake Climate Action Network, for example, is one of several fractivist outposts funded by erstwhile nun named Pam Solo who has made a small fortune spending the millions of a trust-funder artist.  Today, though, you might hear these opponents singing “You try sixteen times, what do you get; another day older and deeper in debt.” That’s because they lost, badly, some 16 times in one decision, by the DC Court of Appeals.

The decision was issued Tuesday and a highlighted copy may be found here. Let me share a few of those highlights (emphasis added):

Notwithstanding petitioners’ argument to the contrary, FERC’s conclusion that there is a market need for the Project was reasonable and supported by substantial evidence, in the form of long-term precedent agreements for 100 percent of the Project’s capacity…

Petitioners’ Natural Gas Act, Takings Clause, and due process challenges to Mountain Valley’s exercise of eminent domain authority also fail. Our jurisdiction in this case is limited to review of “order[s] issued by the Commission,” and under this statutory scheme, the obligation to guarantee Mountain Valley’s ability to pay just compensation for any future takings under the Act does not belong to FERC…

Petitioners additionally contend that FERC failed to adequately consider the climate change impacts of downstream greenhouse gas emissions resulting from combustion of gas transported by the new pipeline. Petitioners claim that FERC erred in concluding that such emissions are not reasonably foreseeable indirect effects of the Project. We need not consider that argument, however, because even if petitioners are correct, FERC provided an estimate of the upper bound of emissions resulting from end-use combustion, and it gave several reasons why it believed petitioners’ preferred metric, the Social Cost of Carbon tool, is not an appropriate measure of project-level climate change impacts and their significance under NEPA or the Natural Gas Act

Not only do petitioners offer no alternative to the Social Cost of Carbon tool for assessing the incremental climate change impacts of downstream greenhouse gas emissions, but their opening brief also fails to address several of the reasons FERC gave for rejecting the Social Cost of Carbon tool…

In the absence of any explanation as to how FERC should have considered adverse impacts from downstream greenhouse gas emissions in its public interest determination under the Natural Gas Act using something other than the Social Cost of Carbon, we have no basis for saying that FERC’s treatment of the issue in the Certificate Order was inadequate, unreasonable, or otherwise contrary to NEPA or the Natural Gas Act.

Petitioners’ remaining NEPA challenges also fail. Having carefully considered petitioners’ objections to FERC’s environmental impact analysis, we conclude that the agency adequately considered and disclosed erosion and sedimentation impacts on aquatic resources, impacts on groundwater in karst terrain, and impacts on Peters Mountain residents’ cultural attachment to the land, and appropriately evaluated reasonable alternatives to the Project…

Petitioners’ challenges brought under the National Historic Preservation Act (NHPA) likewise lack merit. FERC did not violate the NHPA by issuing the Certificate Order subject to the condition that it would complete the NHPA section 106 consultation process prior to construction…

Nor did the agency violate the NHPA by failing to consider the potential adverse effects of a second pipeline on “historic properties within the area of potential effects,” because even if Mountain Valley’s contract offers to landowners stipulate that the contract covers rights of way for two pipelines, the Project itself entails construction of a single pipeline. We lack jurisdiction to review the challenges related to lack of participation of certain Tribal Historic Preservation Officers in the section 106 process because the Officers themselves were not parties to the proceeding below: FERC denied their untimely motions to intervene and they did not seek rehearing of those denials

Additionally, petitioners have not established that FERC violated any cognizable rights related to their participation as consulting parties in the section 106 process or their intervention in the proceedings…

We have considered petitioners’ remaining arguments and found them without merit.

That’s a win, if there was one. What seem to seeing lately from this court is growing impatience with manure splatter on the wall type appeals by well-funded special interests. The court is not blind to the extensive research done by FERC. It also recognizes its own inability to replace that research or change the law. More than this, though, the court seems to appreciate the wholly cynical approach of the special interests. They have access to bottomless pits of money and are funding lawsuits that amount to nothing more than a collection of frivolous complaints.

This is best illustrated by the court’s poignant observation that the petitioners offered “no alternative to the Social Cost of Carbon tool for assessing the incremental climate change impacts.” The court basically asked the petitioners how the heck they were supposed to evaluate greenhouse gas impacts if the petitioners themselves didn’t offer an alternative. This gets to the root of the matter, doesn’t it?

The petitioners, like all fractivists, have no original thoughts or sound alternatives to offer. They can only talk in vague ambiguities designed to obscure the fact they don’t give a damn about alternatives; they just want to obstruct, delay and destroy. Whatever it is they’re against it. The court saw through them and seems to be doing so more often recently. May it continue.

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