By Mike Tony
The Mountain Valley Pipeline’s legal saga took an extraordinary turn Thursday (July 27) morning.
The chief justice of the U.S. Supreme Court lifted a lower court’s holds on key federal project approvals as the latter court heard oral arguments covering cases that led to those holdups in a Richmond, Virginia, courtroom.
In a one-paragraph order, Chief Justice John G. Roberts Jr. lifted the stays issued by the 4th U.S. Circuit Court of Appeals that temporarily barred construction on the gas pipeline crossing through 11 counties in West Virginia into Virginia.
The 4th Circuit issued its stays as it considers challenges of the constitutionality of a provision in a law enacted last month that was designed to force completion of the long-delayed 303.5-mile pipeline.
Roberts’ order stopped short of deciding whether the provision of the debt limit suspension law, the Fiscal Responsibility Act, was constitutional. Roberts gave no reason for his ruling.
4th Circuit Judge James A. Wynn acknowledged Roberts’ freshly issued order during oral arguments, calling it “not unexpected.”
“But that doesn’t affect the arguments that we are currently hearing in this case, as I see it,” Wynn said. “The stay is simply an extraordinary type [of] relief that just pauses while something is being decided.”
Environmental groups’ challenges of the constitutionality of the law fast-tracking the roughly $6.6 billion pipeline’s completion remain unresolved, but Roberts’ order clears the way for project construction to resume.
Mountain Valley Pipeline LLC, the joint venture behind the pipeline, told the Federal Energy Regulatory Commission, the lead federal agency overseeing the pipeline project, the company would resume “forward-construction activities” in response to Roberts’ order. Mountain Valley spokeswoman Natalie Cox has said that involves advancing the project toward completion, rather than maintenance work.
Sens. Joe Manchin, D-W.Va., and Shelley Moore Capito, R-W.Va., and Rep. Carol Miller, R-W.Va., all of whom voted for the Fiscal Responsibility Act and applauded the law’s pro-pipeline provision, hailed Roberts’ decision Thursday.
“The Supreme Court has spoken and this decision to let construction of the Mountain Valley Pipeline move forward again is the correct one,” Manchin said in a statement.
Manchin, Capito, Miller, Rep. Alex Mooney, R-W.Va., Gov. Jim Justice and Attorney General Patrick Morrisey were among those who filed briefs in support of Mountain Valley’s request for Roberts to lift the 4th Circuit holds.
“The American people are tired of politics interfering with domestic energy production in the name of climate change,” Miller said in a statement. Miller had encouraged pipeline developers to ignore the 4th Circuit rulings that put project construction on hold.
The 4th Circuit issued an order on July 10 staying U.S. Forest Service and Bureau of Land Management approval of the pipeline crossing through the Jefferson National Forest. The next day, the court put on hold a U.S. Fish and Wildlife Service approval applying to the entire project. The court gave no reason for its orders.
Mountain Valley Pipeline submitted an emergency application to Roberts last week to lift the holds. Mountain Valley attorneys said the stays must be thrown out by Wednesday if the pipeline is to be operational this year.
Roberts is the Supreme Court justice assigned to consider requests for emergency action coming from the 4th Circuit, which covers West Virginia, Virginia, Maryland, North Carolina and South Carolina.
The Fiscal Responsibility Act, HR 3746, prohibits legal challenges of any federal or state agency authorization for construction and initial operation of the gas pipeline, which has faced many legal setbacks rooted in water pollution and erosion issues.
The 4th Circuit’s withering questioning of Mountain Valley and federal attorneys arguing the Fiscal Responsibility Act’s pro-pipeline provision is constitutional Thursday suggested the court may block the pipeline yet again.
“What substantive change do you have in the law other than a license for Mountain Valley to complete this without any guardrails that were put in place and still in place?” Wynn asked Kevin McArdle, a U.S. Department of Justice attorney representing the federal agencies. “You didn’t change any federal law. You just gave a license, and then told the court, ‘You can’t do anything about it.’”
McArdle argued that Congress can make changes to law applicable to pending cases — a topic on which Wynn said the Supreme Court has been “somewhat unclear.”
Wynn focused on United States v. Klein, a case in which the Supreme Court held in 1871 that a law can’t tell a court to draw a certain conclusion or direct it how to decide a case. McArdle pointed to Bank Markazi v. Peterson, a case resulting in a 2016 Supreme Court ruling that Congress could change law and make it retroactively applicable to pending litigation.
Roberts issued a dissenting opinion in the case.
“Hereafter, with this Court’s seal of approval, Congress can unabashedly pick the winners and losers in particular pending cases,” Roberts wrote.
Project opponents argue that the provision of the Fiscal Responsibility Act designed to force the pipeline’s completion violates the separation-of-powers doctrine. That doctrine refers to the division of powers among the executive, legislative and judicial branches of government, with each branch given certain powers to check and balance the other branches.
The Fiscal Responsibility Act gives the U.S. Circuit Court for the District of Columbia jurisdiction over any claim challenging the legislation fast-tracking approval of the pipeline — not the 4th Circuit Court, which has had jurisdiction over such claims.
The law compelled the U.S. Army Corps of Engineers last month to issue all permits needed to finish construction of the pipeline within three weeks.
The Fiscal Responsibility Act’s introduction in late May came after another court, the D.C. Circuit, sent FERC orders allowing the project to proceed back to the agency. The court found that the agency hadn’t sufficiently explained its decision not to prepare a supplemental environmental impact statement addressing unexpectedly severe erosion and sedimentation along the pipeline’s right-of-way.
“Isn’t it true that [Mountain Valley] can violate any environmental law and it’s ratified until they get to full capacity?” Wynn asked Mountain Valley attorney Donald B. Verrilli Jr.
“I would phrase it differently,” Verrilli said.
“No, you don’t get to phrase my question,” Wynn shot back.
The 4th Circuit combined challenges covered by Thursday’s oral arguments in which project opponents challenged the Fiscal Responsibility Act’s pro-pipeline provision.
In one of the cases, environmental groups, including three West Virginia-based organizations, are challenging Fish and Wildlife’s approval issued for the project in February. The agency found the pipeline isn’t expected to jeopardize endangered species.
The 4th Circuit threw out two such Fish and Wildlife approvals for the project issued in 2017 and 2020. In throwing out the latter approval last year, the court found that the agency failed to adequately evaluate environmental stressors, such as impoundments and off-road vehicle tracks and future effects of climate change, jeopardizing endangered fish.
The West Virginia Rivers Coalition, the West Virginia Highlands Conservancy and the Monroe County-based Indian Creek Watershed Association are among the environmental groups contesting the latest Fish and Wildlife approval.
In another case, the Wilderness Society, a Washington, D.C.-based conservation nonprofit, challenged Forest Service and Bureau of Land Management approvals issued in May for the 42-inch-diameter pipeline to cross through a 3.5-mile stretch of the Jefferson National Forest.
Wilderness Society President Jamie Williams expressed disappointment with Roberts’ order in a statement, calling the pipeline “a threat to our water, our air, and our climate.”
“We will continue to argue that Congress’ greenlight of this dangerous pipeline was unconstitutional, and will exhaust every effort to stop it,” Williams said.
This article originally appeared in the Charleston-Gazette Mail on July 27, 2023.