Senator Joe Manchin, chairman of the Senate Energy Committee, wants the chief justice of the United States to clear the Mountain Valley Pipeline for completion.
A brief for Manchin to the Supreme Court says the senator strongly supports a move to vacate stays ordered by a lower court, the Fourth Circuit Court of Appeals.
The brief on behalf of the senator is an amicus curiae, commonly called a friend of the court brief. Parties who are not formally part of the case can file them to weigh in or volunteer expertise. So Manchin’s refers to him as “amicus,” meaning friend, and describes his interest as chairman of Senate Energy, his advocacy for the pipeline and his role in authoring legislation at the center of the court conflict.
“As Chairman of the Committee on Energy and Natural Resources, Amicus takes a keen interest in the nation’s energy security and independence, the development of our energy resources, and the permitting of natural gas pipelines, including the Mountain Valley Pipeline, which is the subject of the emergency application to vacate,” the brief states.
The pipeline’s path through the courts took on another twist in recent weeks.
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, saying all remaining permits should be ratified and that no court should any longer have jurisdiction over the actions of federal agencies on the pipeline.
West Virginia’s delegation played key roles in that section intervening with the pipeline, which crosses nine of the state’s counties. Manchin’s brief notes that he was one of the main authors.
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 by the pipeline developers to dismiss the lawsuits by arguing that the congressional intervention violates constitutional separation of powers principles.
A three-judge panel of the Fourth Circuit Court of Appeals issued a stay of pipeline construction last week to buy time to examine those questions.
Then, the pipeline developers kicked the question upstairs. They filed for an emergency intervention by John Roberts, chief justice of the United States.
The Mountain Valley Pipeline developers want Roberts to vacate the lower court’s stays and get construction back on track before winter. 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 chief justice has asked for a response by the plaintiffs — the environmental groups — by 5 p.m. July 25.
The overriding question is whether Congress overstepped its constitutional authority by mandating outcomes by the executive branch or halting review by the judicial branch.
Manchin’s brief, filed today with the Supreme Court, contends Congress was constitutionally in bounds. The brief goes on to cite the Constitution’s Commerce clause, giving legislators the power to regulate commerce among states.
“Section 324 of the Fiscal Responsibility Act is a valid exercise of Congress’s power to regulate interstate commerce rather than an impermissible usurpation of the courts’ judicial power,” according to the brief for Manchin, D-W.Va.
“Enactment of section 324 moots the cases pending in the Fourth Circuit and deprives it of jurisdiction to grant the stays the Applicant is asking this Court to vacate. Section 324 is a valid Act of Congress and should be given legal effect.”
His brief notes that Congress justified its pipeline intervention by finding that its timely completion is in the national interest.
“Congress did not take this step lightly. Careful attention was paid to the Court’s precedents in this area and great care was taken to frame section 324 so that it would not impinge upon the courts’ judicial power,” according to Manchin’s brief.
The brief contends that the new law mandating pipeline approval supersedes the old laws that were being challenged in court.
“Amicus strongly supports the application to vacate the stays,” Manchin stated in the brief.
Meanwhile, the conflict is still playing out in the Fourth Circuit Court of Appeals.
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.
Parties in the case jointly filed a motion this week asking for extra time for oral arguments. They say there are a lot of parties involved, plus they took note of the Supreme Court oversight.
“Given the number of parties and counsel, the number of important substantive and jurisdictional legal questions, and the fact that the issues to be addressed at the July 27, 2023 oral argument are simultaneously being presented to the United States Supreme Court, Petitioners respectfully submit that a 20-minute oral argument would not be sufficient to allow each party in the consolidated petitions for review to fully present their positions or to ensure a thorough exploration of the questions presented,” the parties wrote.
They’re asking for a full hour for oral arguments, split between the plaintiffs and defendants.
“Such additional time will allow the parties and this Court to thoroughly air the important legal questions presented by the pending motions.”