Mountain Valley Pipeline asks chief justice to intervene to lift an appeals court stay

The developers of Mountain Valley Pipeline have asked the chief justice of the U.S. Supreme Court for an emergency intervention to allow the project’s construction to progress.

The pipeline developers made their application late Friday to vacate the stays of the Fourth Circuit of the U.S. Court of Appeals.

Such applications represent a request for emergency action addressed to a specific justice, in this case Chief Justice John Roberts. Each justice is assigned to circuits to handle such applications, and Roberts has the Fourth Circuit, which includes the region where the pipeline is being developed.

The 35-page filing is in response to an order by a three-judge panel of the Fourth Circuit appeals court, which halted construction of the Mountain Valley Pipeline. The appeals judges were buying time to consider whether Congress was acting within its constitutional powers when it mandated the approval of the pipeline’s federal permits and ordered an end to judicial review.

Mountain Valley Pipeline wants last week’s appeals court order to be vacated. The pipeline developers also want a ruling that the appeals court lacked jurisdiction.

“The court of appeals lacked jurisdiction to grant the relief it ordered (or any other). Even assuming that court had jurisdiction, Congress has ratified the underlying agency actions and superseded any provision of law that could have conceivably served as a basis for relief,” wrote lawyers for the pipeline’s developers.

“The court of appeals’ stay orders flew in the face of this recent, on-point, and emphatic congressional command that the remaining construction of the Mountain Valley Pipeline must proceed without further delay because ‘construction and operation of the [Project] is required in the national interest.’ This Court’s intervention is needed.”

The Mountain Valley Pipeline is a proposed 303.5-mile interstate natural gas pipeline to East Coast markets. The pipeline’s developers have said they intend to bring the pipeline into service in the second half of 2023.

The $6.6 billion pipeline project first got authorization from the Federal Energy Regulatory Commission in 2017, but its completion was repeatedly delayed by regulatory hurdles and court challenges.

Congress appeared to explicitly clear the path for the pipeline’s completion through a rider in the recently-passed debt limit legislation.

The section of the debt ceiling bill dealing with the pipeline says, “The Congress hereby finds and declares that the timely completion of construction and operation of the Mountain Valley Pipeline is required in the national interest.”

That section goes on to say Congress ratifies and approves all permits and other approvals required for construction and initial operation of the Mountain Valley Pipeline. The section specifies that the approvals should occur no later than 21 days after passage of the bill. And the section continues by saying that no court would have jurisdiction to review the federal regulatory actions.

Just last month, following the congressional action to clear its path, Mountain Valley Pipeline got what was meant to be final approval to complete its construction from the Federal Energy Regulatory Commission.

That came as The Wilderness Society environmental organization was pursuing two court cases challenging federal permits.

The Wilderness Society, in both cases, then challenged whether Congress had violated separation of powers principles.

Earlier this week, the three-judge appeals court panel entered two orders to halt construction on the pipeline until that big question can be addressed.

The appeals judges consolidated the two cases brought by the Wilderness Society and set oral arguments for 10 a.m. July 27 at the Lewis F. Powell Jr. Federal Courthouse in Richmond, Va. The appeals judges in the case are Roger Gregory, James Wynn and Stephanie Thacker, a West Virginian.  

The Mountain Valley Pipeline developers want an answer sooner than that.

“It is critical that the stay orders be vacated, and the underlying petitions for review be dismissed, as soon as possible, and in any event no later than July 26, 2023. MVP has only approximately three months to complete the Pipeline before winter weather sets in and precludes significant construction tasks until the spring of 2024,” lawyers for MVP wrote.

“And the failure to complete the Pipeline this year will deprive its shippers—including natural gas and electric utilities, gas producers, and others—of critical additional gas transportation capacity for the upcoming winter peak demand season, contributing to natural gas shortages and price spikes, harming the general public and businesses alike.”

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