Published: August 2, 2023
By: Concentric Staff Writer
The U.S. Supreme Court granted a request by the developers of the Mountain Valley Pipeline (MVP) to vacate stays issued earlier this month by a lower court that had held the pipeline up, allowing the project to continue construction.
The high court on July 27 granted the application to vacate stays submitted to Chief Justice John Roberts by developers of the pipeline and presented by him to the court on the same day. The U.S. Court of Appeals for the Fourth Circuit had issued the stays on July 10 and July 11 (23A35). The developer had also requested the Supreme Court grant a writ of mandamus declaring that the lower court did not have jurisdiction in the case, but the court did not do so.
“Although the Court does not reach applicant’s suggestion that it treat the application as a petition for a writ of mandamus at this time, that determination is without prejudice to further consideration in light of subsequent developments,” the unsigned Supreme Court order says.
The court vacated the stays, and construction can resume on the last 3.5 miles of the 303-mile natural gas pipeline that would interconnect with existing pipelines in the Southeast and Mid-Atlantic, but it did not address lawsuits filed against the project by environmental groups, which continue to move forward in the Fourth Circuit. Lawyers in the case continue to argue in Richmond, Virginia over a motion to dismiss the environmental groups’ lawsuits.
The State of West Virginia favors the project, which its lawyers say will reduce the risk of natural gas shortages and price spikes this winter. The Fiscal Responsibility Act, signed by President Joe Biden on June 3, required that all federal permits for the project be issued by June 24. Sen. Joe Manchin (D- West Virginia) had conditioned his approval of the Inflation Reduction Act on the timely completion of the project. The Fourth Circuit issued the stays on the premise that the section of federal law, Section 234, created by Congress to expedite the project, is unconstitutional.
“Section 324 changed the substantive law applicable to all pending and future cases challenging the authorizations and permits covered by the statute, and that substantive change eliminates any Article III separation-of-powers problem,” MVP lawyers argued in a July 26 reply.
Joining the call to vacate the stays was West Virginia Gov. James Justice, who says he has a vital interest in seeing the Mountain Valley Pipeline completed as there are significant property rights and hundreds of millions of dollars in royalty revenues at stake.
“As important as the Mountain Valley Pipeline is for the jobs, royalties, and revenues so important to our economy, however, the natural gas that will be available once this project is completed is of even greater importance to this Nation’s energy security, and therefore to this Nation’s national security,” Justice said in a July 25 filing.
However, environmental groups argue that Congress created the MVP-specific provision in the “unrelated” Fiscal Responsibility Act. By picking the U.S. government and MVP as winners and stripping courts of jurisdiction, Congress improperly invaded judicial power, the groups said.
The groups, led by Appalachian Voices said that construction of the project requires creating a corridor through diverse forestlands, landslide-prone terrain, and “hundreds of sensitive rivers and streams.” The groups allege that serious sedimentation and erosion problems have emerged since the project began in 2018.
‘[F]aced with the reality that its ill-conceived pipeline cannot comply with this nation’s foundational environmental laws, MVP sought special legislation in which Congress attempted to seize the judicial power by essentially declaring that, in pending litigation challenging authorizations for MVP, the Government and MVP win. Congress offered no substantive replacement legal standards and left no substantive questions of law or fact for the court to adjudicate,” the groups, which include Wild Virginia, West Virginia Rivers Coalition, Preserve Giles County, Preserve Bent Mountain, West Virginia Highlands Conservancy, Indian Creek Watershed Association, Sierra Club, Chesapeake Climate Action Network, and Center for Biological Diversity, said in the filing.
Manchin on July 28 issued a statement following the Supreme Court action.
“I fought to ensure that language to complete the Mountain Valley Pipeline was included in the Fiscal Responsibility Act in June,” Manchin said in an online video message. “Congress passed that law, the President signed it, and now the Supreme Court of the United States spoke with one voice to uphold it. Construction of the Mountain Valley Pipeline will now resume, creating 4,500 jobs by the end of August. This is a great day for American energy security and even a greater day for the state of West Virginia.”
Mountain Valley Pipeline has received necessary authorizations from the U.S. Forest Service, the Bureau of Land Management, the U.S. Fish and Wildlife Service and others. On June 28, the Federal Energy Regulatory Commission authorized general construction to resume, but that work was brought to a halt by the lower court stays.
All views expressed by the author are solely the author’s current views and do not reflect the views of Concentric Energy Advisors, Inc., its affiliates, subsidiaries, or related companies. The author’s views are based upon information the author considers reliable at the time of publication. However, neither Concentric Energy Advisors, Inc., nor its affiliates, subsidiaries, and related companies warrant the information’s completeness or accuracy, and it should not be relied upon as such.