Friday, September 29, 2023
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Supreme Court order disrupts Fourth Circuit hearing over Mountain Valley Pipeline

The order came a day after a gas pipeline exploded in a nearby county and burned several acres of farmland.

RICHMOND, Va. (CN) — A look of confusion overcame the crowd of attorneys, media and spectators filing out of a nearly 2-hour Fourth Circuit hearing Thursday morning as the Supreme Court issued an order potentially making the hearing moot. 

The special out-of-session hearing aimed to determine whether the Mountain Valley Pipeline, a 303-mile pipeline carrying fracked gas from northwestern West Virginia through southern Virginia, can continue construction while environmental groups challenge approvals for the project. The Supreme Court decided mid-hearing to vacate two stays from the Fourth Circuit that halted construction, giving the nearly completed pipeline the go-ahead. 

Although the Fourth Circuit will still issue an opinion on the matter, given the high court order they will likely grant the government and the pipeline's motion to dismiss the environmental organizations' petitions for review.

"The Supreme Court's decision vacating the stay doesn't directly end the case in the Fourth Circuit," William and Mary Law professor Aaron-Andrew P. Bruhl said in a phone interview. "However, it gives a strong signal that the Fourth Circuit lacks jurisdiction." 

 Attorney Kym Meyer of the Southern Environmental Law Center, representing the conservation organizations, spoke with reporters in the sweltering Virginia heat and said she was disappointed with the Supreme Court's decision. 

"The first we heard of that was during the argument," Meyer said. "Certainly, we are disappointed in that ruling, but today we remain focused on the Fourth Circuit." 

Bruhl said environmental groups could file more challenges in hopes of slowing down construction but that it would be unlikely for the Fourth Circuit to give any more stays. 

"I would be surprised if the environmental groups ask the Fourth Circuit to order a stay," Bruhl said. 

The government and the Mountain Valley Pipeline argued that the courts no longer have jurisdiction following Congress's passage of the bipartisan Fiscal Responsibility Act of 2023. The act came with an amendment expediting the construction and protecting it from judicial review. 

"Congress can make a change in the law applicable to pending cases even if it's outcome-determinative," attorney Kevin McArdle representing the government, told the three-judge panel. 

U.S. Circuit Judge Roger L. Gregory, a George W. Bush appointee, asked whether the amendment meant the pipeline had the authority to violate any environmental protections they wanted. 

"That's not true," McArdle said. "The statute ratifies existing approvals, and those approvals were issued pursuant to federal law, so MVP would still need to comply with the terms of those approvals." 

Bruhl said the high court's decision came with urgency because Mountain Valley Pipeline raised concerns about being able to complete construction this year should litigation drag into the winter. Along with over 400 waterway crossings left to build, the builders also have a 3-acre section in the Jefferson National Forest to complete.

"My sense is that the Supreme Court probably issued it as soon as they thought they were ready to," Bruhl said. "It just happened to be that the timing was a bit awkward." 

Bruhl said the Supreme Court's order leads to a conversation about an issue much bigger than a dispute over a pipeline. The amendment came with a provision that only the D.C. Circuit could address questions of the amendment's constitutionality.

"The larger issue is about congressional control over the courts," Bruhl said. "If Congress decided they didn't like what those judges were doing, one possible reform would be to say that actions challenging rules of nationwide applicability have to be filed in Washington D.C." 

The hearing came a day after a gas pipeline exploded in nearby Shenandoah County, leaving several acres of farmland burned. Attorney Spencer Gall of the Southern Environmental Law Center said Wednesday's explosion is an example of what residents along the pipeline's route can fear. 

"I think it highlights why it's important for regulators to take these things seriously and not just approve pipelines because that's the path of least resistance," Gall told the media. "Yesterday's event shows that pipeline safety is not just a box to check; it's a serious thing." 

Meyer said it is too soon to say what she and her clients will do next following the Supreme Court's decision. 

U.S. Circuit Judges Stephanie D. Thacker and James Andrew Wynn, both Barack Obama appointees, rounded out the panel. Attorneys representing the pipeline did not respond to requests for comment. 

Categories / Appeals, Environment, Government

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