Construction on the Mountain Valley Pipeline has been halted again because of a big constitutional question: Can the legislative branch forbid the judicial branch from reviewing whether the project is in line with federal environmental laws?
Late last week, the pipeline’s developers asked Chief Justice John Roberts to intervene on the question. Lawyers for Mountain Valley Pipeline asked Roberts for an emergency reversal of an appeals court stay. Their argument was that Congress had been clear, that the pipeline could not be held up any longer by the courts.
“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 Even assuming that court had jurisdiction, Congress has ratified the underlying agency actions and superseded any provision of law that could have conceivably served as a basis for relief,” lawyers for the pipeline wrote in their application for Roberts to intervene.
“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.'”
The application for the chief justice ratchets the question up a big notch after a three-judge panel of the Fourth Circuit Court of Appeals issued a stay of pipeline construction last week. That took place in two related cases where a national environmental organization challenged whether Congress had overstepped its authority.
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 pipeline’s developer, Equitrans Midstream, is asking for a decision at the Supreme Court level even before that, though, saying any slowdown in the court system imperils the likelihood of finally completing the project before winter sets in.
Senator Shelley Moore Capito, R-W.Va., agreed that the Supreme Court predicted last week that the Supreme Court would wind up with the pipeline case. Capito, who has supported the pipeline’s completion, contended congress was on solid ground by mandating the approval of the project’s remaining permits in legislation that was signed by President Biden.
“This was gone over with a fine-tooth comb by all the constitutional lawyers here. It was signed by the president of the United States and, I’m sure, gone over by his constitutional lawyers as well,” Capito said to reporters during an online news briefing.
“I think we will see a challenge of the stay in the Supreme Court, although I don’t think that’s been issued yet, and I think it will be successful.”
Capito contended the appeals judges have disrupted the pipeline’s progress too often to be taken at face value.
“The Fourth Circuit has shown more than a few times, particularly in this process, that they are working on an agenda here. You’re supposed to have a system that you have random judges out of the 15 judges,” Capito said.
“Every time mountain valley pipeline comes before that court, they have the same three judges who are who issue the same decisions, which is stay. They’re obviously opposed to this, and they’re working on a political agenda.”
In a statement objecting to the appeals court, Senator Joe Manchin said the judges came down on the wrong side.
“The law passed by Congress and signed by the President is clear — the 4th Circuit no longer has jurisdiction over Mountain Valley Pipeline’s construction permits,” stated Manchin, D-W.Va.
“This new order halting construction is unlawful, and regardless of your position on the Mountain Valley Pipeline, it should alarm every American when a court ignores the law.”
The Mountain Valley Pipeline is a proposed 303.5-mile interstate natural gas pipeline to East Coast markets, running through nine West Virginia counties.
All that remains, according to the developers, is construction of a 3.5-mile stretch through the federally- owned Jefferson National Forest, as well as completion of stream crossings outside the forest and final restoration of the construction environment.
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.
Last month, Congress appeared to explicitly clear the path for the pipeline’s completion through a rider in debt limit legislation. West Virginia’s delegation was at the center of efforts to include the pipeline approval language in a bill that, otherwise, was focused on ensuring the country wouldn’t default on its public debt obligations.
The pipeline section specified that “no court shall have jurisdiction to review any action taken by” an administrative agency “necessary for the construction and initial operation at full capacity of the Mountain Valley Pipeline . . . whether issued prior to, on, or subsequent to the date of enactment of this section, and including any lawsuit pending in a court as of the date of enactment of this section.”
Any court dispute over whether the validity of the mandate, the section specified, would have to go to the U.S. Court of Appeals for the District of Columbia.
So, just last month, after that congressional action, Mountain Valley Pipeline got what was meant to be final approval to complete its construction from the Federal Energy Regulatory Commission.
At that time, The Wilderness Society already had two lawsuits challenging federal agencies, alleging violations of multiple environmental laws and contending the pipeline project’s permits were defective.
Since then, The Wilderness Society has been fighting motions to dismiss the lawsuits by arguing that the congressional intervention violates constitutional separation of powers principles.
“The MVP rider buried in the Fiscal Responsibility Act attempts to ram through the pipeline, forcing it onto communities who have spoken out against its devastating impacts for nearly a decade,” stated Chase Huntley, vice president of strategy and policy at The Wilderness Society.
“Because bedrock environmental laws stood in the pipeline’s path, Mountain Valley convinced Congress to reach beyond its powers and decide in Mountain Valley’s favor, circumventing the courts.”
Equitrans Midstream disagrees. The pipeline’s developers had said they intend to bring the pipeline into service in the second half of 2023, but now that’s in doubt.
“The Court’s decision defies the will and clear intent of a bipartisan Congress and this Administration in passing legislation to expedite completion of the Mountain Valley Pipeline project, which was deemed to be in the national interest,” the pipeline developer stated last week. “We believe the Court also exceeded its authority, as Congress expressly and plainly removed its jurisdiction.”
Lawyers for Mountain Valley Pipeline say the congressional directive, Section 324 of the debt ceiling bill, makes the Fourth Circuit’s review moot.
“That provision strips all courts of jurisdiction to hear pending and future cases challenging the lawfulness of all agency authorizations necessary for construction of the Pipeline, and channels to the D.C. Circuit all disputes over the lawfulness of Section 324 and all questions about whether a particular agency action falls within the scope of Section 324,” wrote lawyers for the pipeline developers.
Four federal courts scholars have submitted a brief to the appeals court, concluding the action on Mountain Valley Pipeline violates a “core principle that Congress may not reach into a pending case and choose itself as the winner without amending substantive law.”
The brief was submitted in the case by William Araiza of Brooklyn Law School, Erwin Chemerinsky of University of California, Berkeley School of Law, Caprice Roberts of Louisiana State University and Howard Wasserman of Florida International University College of Law.
They conclude that what Congress did is unconstitutional.
“If the constitutional structure separating the legislative power from the judicial is to mean something, it is that there is a line between making laws and applying them,” the lawyers wrote. “It is the Judiciary’s role—not Congress’s—to say where that line is.”
Several members of Congress from Virginia also filed an appeals court brief in opposition to sections of the debt limit bill that cleared the way for the pipeline. The Democrats — Bobby Scott, Gerry Connolly, Don Beyer, Jennifer Wexton and Jennifer McClellan — wrote that the congressional intervention “ran roughshod” over access to pending cases challenging the pipeline project.
They wrote “that Section 324 of the Fiscal Responsibility Act was drafted expressly to close the courthouse door to marginalized communities who have successfully sought—and continue to seek — judicial review before this Court.”
And the representatives continued, “Most obviously, Section 324 runs counter to the constitutional separation of powers as it was drafted with the specific intent to derail ongoing litigation.”
Capito, in her comments to reporters, contended the courts in high-profile recent cases — like West Virginia vs. EPA, which was about the Clean Air Act — have found that Congress needs to be explicit with its intent. That’s exactly what Congress did in this case, she said.
“A lot of the court decisions that are made say ‘Congress hasn’t acted here, Congress wasn’t specific here, Congress didn’t make their opinions well-defined.’ Well, in this one, we did. And we basically said, ‘You’re done, you’re finished, these permits are issued. Time to move on.'”