Published: July 25, 2023
By: Concentric Staff Writer
Developers of the Mountain Valley Pipeline took their battle over the project to the U.S. Supreme Court, asking it to overturn a lower court ruling that shut down construction as it neared completion.
Mountain Valley Pipeline LLC (MVP) in its July 14 application asked the high court to vacate two “extraordinary stay orders” issued by the U.S. Court of Appeals for the Fourth Circuit that are currently blocking the proposed 303-mile natural gas pipeline that would interconnect with existing pipelines in the Southeast and Mid-Atlantic. The project has been embroiled in litigation over the past six years, the target of dozens of lawsuits in the Fourth Circuit that have challenged “virtually every federal authorization issued for the project,” the application states. (23A35).
The project was bolstered when Sen. Joe Manchin (D-West Virginia) conditioned his approval of the Inflation Reduction Act on the easing of regulatory barriers to its construction. It is mostly completed, with only 3.5 miles left to be constructed in the Jefferson National Forest, including some stream crossings outside the forest and some reclamation activities. Manchin eventually withdrew legislation that would have required the Federal Energy Regulatory Commission (FERC) to take all necessary actions to ensure its completion. The Fiscal Responsibility Act (FRA), which President Joe Biden signed on June 3, required that all federal permits for the project to be issued by June 24. More than 4,400 acres of trees have been cleared and only 3.39 acres of clearing are still needed.
The U.S. House of Representatives on July 20 filed a brief amicus curiae with the Court in support of the application to vacate, stating that Congress has the authority to change law as it sees fit.
“The Respondents do not suggest that Congress lacks the general authority to pass legislation related to pipelines or to change existing statutes. They instead suggest that something nefarious is afoot because the FRA applies to a single pipeline project. But Congress may legislate as broadly or narrowly as it sees fit, and—as this Court has recognized—it may pass targeted legislation that applies only to a single subject,” the brief states.
The developer in recent months received necessary authorizations from the U.S. Forest Service, the Bureau of Land Management (BLM), the U.S. Fish and Wildlife Service, and others. On June 28, FERC authorized general construction to resume, but work was halted by the previous stay orders. The Fourth Circuit issued orders blocking construction while it adjudicates petitions for review of the Forest Service and BLM authorizations.
The developer said the most recent stay orders, however, are “critically different” because they came after Biden’s signing of the Fiscal Responsibility Act. Congress in the legislation found that the project is in the national interest, that it will serve demonstrated gas demand in the Northeast, Mid-Atlantic, and Southeast, would increase gas reliability of the gas supply at reasonable prices, will allow natural gas producers to access additional markets and reduce carbon emissions and facilitate the energy transition, the application says.
“The court of appeals thus had no authority to issue the stay orders that MVP challenges in this application,” the application says. “Section 324 [of the law] unambiguously removes jurisdiction from all courts, including the Fourth Circuit, to determine whether the Forest Service and BLM authorizations for work in the Jefferson National Forest, and the Biological Opinion and Incidental Take Statement of the Fish and Wildlife Service, are lawful.” The developer asked the court to vacate the orders and underlying petitions for review to be dismissed as soon as possible, and in any event, by July 26.
Mountain Valley Pipeline LLC said the court of appeals lacks jurisdiction in the case and that even if it did, Congress has ratified the agency actions and superseded any provisions of the law that could serve as a basis for relief. Congress has issued a “command” for the project to be finished and it must proceed without further delay, the application to vacate states.
The State of West Virginia on July 24 also filed in support of MVP.
“Congress was right that the Pipeline’s benefits make finishing it a national priority. West Virginian jobs and tax revenues are on the line. The Pipeline will also bring essential additional natural gas supply to help meet the region’s growing needs at reasonable prices. And it will help insulate our energy sector as a whole from foreign supply challenges and domestic cyberattacks. Especially with no plausible legal justification to withhold these gains, the Court should vacate the stays,” the document states.
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