Saturday, September 30, 2023
Courthouse News Service
Saturday, September 30, 2023 | Back issues
Courthouse News Service Courthouse News Service

Supreme Court greenlights Mountain Valley Pipeline construction 

A provision within a law signed to raise the country’s debt limit helped push forward construction on the Mountain Valley Pipeline despite challenges from environmental groups opposing the project.

WASHINGTON (CN) — The construction on a 303-mile natural gas pipeline should not remain on hold pending environmental groups’ litigation, the Supreme Court said on Thursday.

In an unsigned order, the court vacated two stays from the Fourth Circuit that halted construction on the Mountain Valley Pipeline while environmental groups brought challenges to approvals for the project. Since the matter resided on the court’s emergency docket, the justices do not have to provide reasoning or a vote count for their ruling. None of the justices publicly dissented.

The justices did not comment on the merits of the case, leaving the door open for future high court action on the matter. 

The Mountain Valley Pipeline plans to carry fracked gas from northwestern West Virginia through southern Virginia. This route puts the pipeline across the Appalachian Mountains and their headwater streams and its construction required razing diverse forestlands. Traversing this terrain requires the pipeline to sit on 200 miles of steep and landslide-prone mountains — a quarter of which approaches the steepness of a black diamond ski run.

Environmental groups say the pipeline’s intersection with over 1,000 streams presents a particular risk because sedimentation from the construction harms the surrounding habitats for species protected under the Endangered Species Act. 

A majority of the pipeline is already complete, according to the builders, with only a three-acre section left. The remaining section in Jefferson National Forest is of particular interest to the environmental groups, however, who say there are still over 400 waterway crossings to build — some of the riskiest work.

Litigation over the pipeline began in 2018 when the Virginia Department of Environmental Quality sued the builders over violations of state water quality regulations. The West Virginia Department of Environmental Protection also docked Mountain Valley Pipeline for 46 violations of water quality standards.

Appalachian Voices — one group fighting the pipeline’s construction — is challenging a U.S. Fish and Wildlife Service opinion related to the Endangered Species Act. An appeals court previously found that the agency’s actions violated the act and ignored how the pipeline’s construction could push some species into extinction. 

The Fourth Circuit has issued a stay on the case in order to review Appalachian Voices’ current challenge. 

“In this case involving endangered species that are indisputably harmed by pipeline construction, the stay appropriately maintains the status quo while the court of appeals moves swiftly to resolve the merits — including the pending motions to dismiss,” Jason Rylander, an attorney with the Center for Biological Diversity representing Appalachian Voices, wrote in the group’s brief. “MVP fails to show that it will suffer any harm beyond temporary financial loss as a result of the stay, and the equities weigh heavily in favor of avoiding harm to protected species.” 

The Wilderness Society is also challenging the Forest Service and Bureau of Land Management’s amendments to the forest’s governing plan to accommodate the Mountain Valley Pipeline. 

Mountain Valley Pipeline asked the justices for emergency intervention to block stays given to both groups by the Fourth Circuit. Builders of the pipeline cite congressional authority to continue their pursuit. 

“Congress could not have been clearer that the national interest requires that the pipeline be completed ‘expediti[ously],’” wrote Donald B. Verrilli Jr., an attorney with Munger, Tolles & Olson, in the group’s application. 

The pipeline’s guaranteed completion became tied to the fight to raise the country’s debt limit in a provision backed by West Virginia Democratic Senator Joe Manchin — who has faced criticism over his ties to the fossil fuel industry. The amendment not only fast-tracked the completion of the Mountain Valley Pipeline but also protected it from judicial review. 

“Section 324 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,” Verrilli wrote. “Section 324 also amends and supersedes all other provisions of law that might have provided a basis for challenging the permits, and substantively ratifies and approves the underlying authorizations, thereby depriving the court of appeals of any ability to grant petitioners relief and rendering moot their petitions for review.”

Manchin — who submitted an amicus brief in the case — claims the provision was a valid exercise of congressional authority because lawmakers can regulate interstate commerce. He claims the law mooted litigation in the Fourth Circuit because it ratifies and approved all authorizations and permits necessary to complete construction on the pipeline.

“Faced with what seems to be unending litigation, and with no end in sight, Congress took matters into its own hands by enacting section 324,” Sam Fowler, an attorney working with the Senate committee on energy & natural resources representing Manchin, wrote in his brief. “It ‘declare[d] that timely completion’ of the pipeline ‘is required in the national interest,’ superseded the laws the permitting agencies had been proceeding under, ‘ratifie[d] and approve[d]’ all necessary authorizations, and limited judicial review.”

Environmental groups claim this provision crosses the line between legislating and judging.

“Congress cannot pick winners and losers in pending litigation by compelling findings or results without supplying new substantive law for the courts to apply,” Gregory Buppert, an attorney with the Southern Environmental Law Center representing the Wilderness Society, wrote in the group’s brief. “Nor can Congress manipulate jurisdiction ‘as a means to an end’ in particular pending cases.’”

The groups say Mountain Valley Pipeline lobbied friendly lawmakers in behind-the-door meetings to prevail in these challenges.

“In short, faced 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,” Rylander wrote. “Congress offered no substantive replacement legal standards and left no substantive questions of law or fact for the court to adjudicate.” 

Oral arguments on the merits of the environmental groups’ challenges were being heard at the Fourth Circuit on Thursday when the order was handed down. 

Follow @KelseyReichmann
Categories / Appeals, Energy, Environment, Government, Politics

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.