Work on unfinished portions of the 303-mile Mountain Valley Pipeline (MVP) was fast-tracked last month via the debt ceiling agreement that President Joe Biden, shunning his options for unilateral action, forged with House Republicans who took the global economy hostage.
Construction of the $6.6 billion fracked gas project—pushed hard by the GOP and Sen. Joe Manchin (D-W.Va.), a coal profiteer and Congress' top recipient of Big Oil money—has been halted by courts for years due to concerns about the harms it would unleash on people and ecosystems in Virginia, West Virginia, and beyond.
But Section 324 of the so-called Fiscal Responsibility Act of 2023 required federal authorities to approve all of MVP's outstanding permits, prohibited judicial review of those permits, and said only the D.C. Circuit Court of Appeals has jurisdiction to hear challenges to the provision's constitutionality.
Citing Section 324, MVP's developers and multiple government agencies filed motions last month to dismiss lawsuits against the pipeline. On behalf of The Wilderness Society, the Southern Environmental Law Center (SELC)
filed a brief opposing those motions on June 26, arguing that Section 324 is unconstitutional because it violates the separation of powers.
In response to the stay issued by the Fourth Circuit on Monday, Mountain Valley Pipeline LLC
said: "This is not the court to hear that claim. Congress, in plain terms, gave the D.C. Circuit 'exclusive jurisdiction' to hear such claims... Congress' message was crystal clear: If you want to challenge Section 324, you must do so in the D.C. Circuit."
In a similar vein, Manchin asserted that the Fourth Circuit lacks jurisdiction over MVP permits, rendering its new order unlawful.
But as The Wilderness Society and SELC explained last month, their two cases against the pipeline challenge "defective approvals by the United States Forest Service and the Bureau of Land Management allowing the MVP to cross the Jefferson National Forest in Virginia and West Virginia." Because both lawsuits predate the passage of Section 324 and allege violations of several environmental laws as well as the Administrative Procedure Act, the groups argued, the Fourth Circuit does have jurisdiction.
"Mountain Valley could not build their pipeline in compliance with the law, so they appealed to Congress to interfere with the courts, skirting both our legal system and Constitution," Chase Huntley, vice president of Strategy and Policy at The Wilderness Society, said two weeks ago. "The MVP rider buried in the Fiscal Responsibility Act attempts to ram through the pipeline, forcing it onto communities who have spoken out against its devastating impacts for nearly a decade."
"Because bedrock environmental laws stood in the pipeline's path, Mountain Valley convinced Congress to reach beyond its powers and decide in Mountain Valley's favor, circumventing the courts," said Huntley. "We're fighting to make sure our challenge to the Forest Service and Bureau of Land Management's approvals for the pipeline to cross the Jefferson National Forest has its rightful day in court."
The Wilderness Society and SELC weren't the only organizations to take action last month. Lawyers from the Sierra Club, Appalachian Mountain Advocates, and the Center for Biological Diversity filed a companion response opposing identical motions to dismiss another MVP case. That brief was submitted on behalf of 10 environmental groups—Wild Virginia, Appalachian Voices, Indian Creek Watershed Association, Preserve Bent Mountain, Preserve Giles County, West Virginia Highlands Conservancy, West Virginia Rivers Coalition, Chesapeake Climate Action Network, Sierra Club, and the Center for Biological Diversity.
In a Tuesday morning statement, Equitrans Midstream—which holds the largest interest among MVP stakeholders and plans to manage the pipeline once operational—said it was "disappointed" with the Fourth Circuit's stay and claimed the judges exceeded their authority.
"We are evaluating all legal options, which include filing an emergency appeal to the U.S. Supreme Court," the company said. "Unless this decision is promptly reversed, it would jeopardize Mountain Valley's ability to complete construction by year-end 2023."
MVP is one of several new fossil fuel projects being built or considered in the U.S. despite mounting evidence of the worsening climate crisis—and in direct conflict with the international scientific consensus, which has long warned that increasing the extraction and combustion of coal, oil, and gas will exacerbate deadly planetary heating.
As extreme weather disasters continue to wreak havoc across the U.S. and the world, Biden is facing growing pressure to declare a national climate emergency, which advocates say would unlock additional powers his administration could use to rein in the fossil fuel industry and ramp up clean energy production. Congressional Republicans, meanwhile, are currently trying to preempt the president from making such a move.
