The U.S. Court of Appeals for the Fourth Circuit refused to issue a stay of state agency water quality certifications for a natural gas pipeline project in North Carolina and Virginia. Opponents of the project sought a stay during their appeal of the state agencies’ certifications. A stay of the certifications would have brought the project’s construction to a halt.

In two published opinions issued the same day, the 4th Circuit denied the stay requests because those opposing the project were unlikely to succeed in their appeals.

State Water Quality Certifications
The Federal Energy Regulatory Commission (FERC) issued a permit for the project. As part of the permitting process, the North Carolina Department of Environmental Quality and the Virginia Department of Environmental Quality issued certifications that the project will comply with their water quality requirements. As is often the case, the certifications included specific and enforceable water-quality practices applicable to the project.

Opponents Unlikely to Succeed
Obtaining a stay of an agency’s action during appeal requires demonstration of extraordinary circumstances, including that the appeal of the party requesting the stay is likely to succeed.

In both cases, the 4th Circuit noted the specific and detailed requirements that each state agency imposed on the project as part of their certifications. Those requesting a stay of the certifications failed to overcome the deference courts show to agencies when reviewing the adequacy of specific permit requirements.

To see the North Carolina opinion https://www.ca4.uscourts.gov/opinions/261044.p.pdf

To see the Virginia opinion https://www.ca4.uscourts.gov/opinions/261220.p.pdf