Supreme Court paves way for construction of Mountain Valley Pipeline to resume

Washington — The Supreme Court on Thursday paved the way for construction of the controversial Mountain Valley Pipeline project to resume, granting a request to lift lower court orders that halted the project and delayed its completion.

The court’s brief order vacates stays issued by the U.S. Court of Appeals for the 4th Circuit in cases brought by environmental organizations opposed to the 303-mile Mountain Valley Pipeline that will transport natural gas from West Virginia to Virginia. There were no noted dissents.

Construction for the project was approved by the Federal Energy Regulatory Commission, or FERC, in 2017. But since then, the project has been entangled in numerous legal challenges to federal approvals for its construction and operation brought by environmental groups. The pipeline, however, is nearly completed, and all that remains is construction of a 3.5-mile stretch through the Jefferson National Forest and stream crossings.

Before the Supreme Court are two of those disputes, the first brought by the Wilderness Society and the second from a coalition of 10 environmental groups. They sought review from the 4th Circuit of authorizations issued this year by the U.S. Fish and Wildlife Service, Bureau of Land Management and the U.S. Forest Service allowing the pipeline segments in Jefferson National Forest.

The groups argue pipeline construction will harm endangered species and allege the approvals from BLM and the Forest Service violate numerous environmental statutes.

Following the authorizations, FERC gave the green light in late June for the Mountain Valley Pipeline project to resume, and workers and equipment were deployed by the company, which wants construction finished by the end of 2023.

Legal challenges to the Mountain Valley Pipeline

The Wilderness Society, though, challenged the Biden administration’s authorizations on June 1. Days later, Congress passed a legislative package lifting the debt ceiling that included language approving the pipeline project and declared that “construction and operation … is required in the national interest.”

The addition of the provision known as Section 324 was a major victory for Sen. Joe Manchin, a West Virginia Democrat who had been pushing Congress to greenlight the project.

Under the measure, signed into law by President Biden in early June, Congress approved all authorizations or necessary permits issued for the construction and operation of the pipeline. A provision also stripped federal courts of jurisdiction to hear challenges to authorizations granted by federal agencies to build the pipeline. Any disputes over the lawfulness of that section must be heard by the federal appeals court in Washington, D.C.

After enactment of the debt ceiling package, the Justice Department and Mountain Valley Pipeline moved to dismiss the challenges from the environmentalists. But the Wilderness Society and coalition of environmental groups, led by Appalachian Voices, argued that the law’s withdrawal of jurisdiction is unconstitutional.

The organizations asked the U.S. Court of Appeals for the 4th Circuit to block construction of the pipeline while it reviewed the various agency actions, and the appeals court agreed to do so earlier this month. The 4th Circuit is hearing arguments in the cases Thursday.

Mountain Valley Pipeline filed an emergency application with the Supreme Court seeking to resume the project, arguing in part that the 4th Circuit did not have the ability to grant relief because it lacked jurisdiction over the environmental groups’ permitting challenges.

“In all events, Section 324 is a valid exercise of Congress’s Article I powers to establish standards for environmental permitting and to prescribe the jurisdiction of the lower courts. In exercising those authorities, Congress did not impinge on the Article III judicial power,” lawyers for the company wrote.

They also argued the provision of the debt ceiling package renders the case moot, since Congress ratified the relevant agency actions at the center of the legal battles. Leaving the 4th Circuit’s pause in place, Mountain Valley Pipeline warned, will delay its completion before spring 2024 and lead to increased demand for natural gas in the mid-Atlantic and southeast regions served by the pipeline.

“As soon as it is completed, the Pipeline will provide a reliable source of natural gas and help insulate customers from severe price fluctuations — reducing costs for consumers and businesses at exactly the time demand will be most intense,” the company’s lawyers wrote. “If the stays remain in place, however, individuals and businesses will have to endure yet another winter season of price spikes and supply shortages.”

The Biden administration, Manchin and the GOP-led House sided with the pipeline company in the dispute and urged the Supreme Court to lift the lower court orders.

“Congress exercised its Article I and Article IV powers to make the following policy decision: federal law will facilitate the prompt completion of the Pipeline and commencement of its operation,” the House’s Office of General Counsel wrote in a friend-of-the-court brief.

Lawyers for the Wilderness Society urged the Supreme Court to allow the lower court orders to remain untouched and accused Congress of enacting a provision that not only “crosses the line between legislating and judging” but also violates the Constitution.

“Congress overstepped the line that separates legislating and judging when it enacted Section 324 by picking winners and losers in pending litigation without supplying new substantive law,” they wrote in a filing to the Supreme Court.

The environmental group also argued that the provision is “independently unconstitutional” because it strips jurisdiction in order to guarantee the government and Mountain Valley Pipeline would win in the pending litigation over the pipeline approvals.  

The company and entities backing it in the dispute “spend most of their time speculating about harms to the gas supply chain, individuals and businesses, and the national interest — in short, to anyone but MVP,” the Wilderness Society said. “But for the extraordinary remedy MVP seeks, this puts the cart before the horse.”

Appalachian Voices, the lead plaintiff in the second case, and the nine environmental organizations separately accused the Mountain Valley Pipeline of appealing to Congress to protect the project after suffering earlier court losses.

“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,” they told the Supreme Court in a brief.