CHARLESTON — The Mountain Valley Pipeline, which appeared to be on its way to completion after federal action, has been halted again by the court system.
Three judges with the Fourth Circuit of the U.S. Court of Appeals entered a short order late Monday to stay construction in the Jefferson National Forest while a court challenge continues. A second stay entered Tuesday morning halts construction on the pipeline even more broadly.
The stays were entered in two separate but related cases by appeals judges Roger Gregory, Stephanie Thacker and James Wynn.
The pipeline’s developers, in response, cited the possibility that the case might now go to the Supreme Court.
The Wilderness Society has been challenging a provision in the Fiscal Responsibility Act meant to expedite approval for federal regulation of the Mountain Valley Pipeline, which crosses nine West Virginia counties to deliver natural gas to eastern markets.
The $6.6 billion pipeline project first got authorization from the Federal Energy Regulatory Commission in 2017, but its completion was repeatedly delayed by regulatory hurdles and court challenges.
Congress appeared to explicitly clear the path for the pipeline’s completion through a rider in the recently passed debt limit legislation.
The section of the debt ceiling bill dealing with the pipeline says, “The Congress hereby finds and declares that the timely completion of construction and operation of the Mountain Valley Pipeline is required in the national interest.”
That section goes on to say Congress ratifies and approves all permits and other approvals required for construction and initial operation of the Mountain Valley Pipeline. The section specifies that the approvals should occur no later than 21 days after passage of the bill. The bill goes on to say that no court would have jurisdiction to review the federal regulatory actions.
In two lawsuits that go back prior to the congressional action, the Wilderness Society alleged violations of multiple environmental laws and contended the pipeline project’s permits were defective.
More recently, the Wilderness Society has been fighting motions to dismiss the lawsuits by arguing that the congressional action violates constitutional separation of powers principles.
“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,” stated Chase Huntley, VP of Strategy and Policy at The Wilderness Society.
“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.”
Just last month, following the congressional action to clear its path, Mountain Valley Pipeline got what was meant to be final approval to complete its construction from the Federal Energy Regulatory Commission.
The Mountain Valley Pipeline is a proposed 303.5-mile interstate natural gas pipeline to East Coast markets. The pipeline’s developers have said they intend to bring the pipeline into service in the second half of 2023.
“We are disappointed with the U.S. Court of Appeals for the Fourth Circuit’s remarkable decision to grant a one-sentence stay halting all construction in the Jefferson National Forest with no explanation,” Equitrans Midstream said in a news release.
“The Court’s decision defies the will and clear intent of a bipartisan Congress and this Administration in passing legislation to expedite completion of the Mountain Valley Pipeline project, which was deemed to be in the national interest. We believe the Court also exceeded its authority, as Congress expressly and plainly removed its jurisdiction.”
Equitrans Midstream said would evaluate all of its legal options, including filing an emergency appeal with the U.S. Supreme Court.
“Unless this decision is promptly reversed,” the developers said, “it would jeopardize Mountain Valley’s ability to complete construction by year-end 2023.”
West Virginia’s congressional delegation has supported completion of the pipeline. Sens. Shelley Moore Capito and Joe Manchin spoke out against the appeals court halting the project.
“The language we included in Section 324 of the Fiscal Responsibility Act was crystal clear: federal agencies were to issue remaining permits, the construction of the Mountain Valley Pipeline can proceed without further delay, and this critical energy project can finally get up and running,” stated Capito, R-W.Va.
“This latest effort by the activist Fourth Circuit Court flies in the face of the law that was passed by a bipartisan Congress and signed by President Biden.”
Manchin, D-W.Va., made similar comments on social media.
“The law passed by Congress & signed by POTUS is clear — the 4th Circuit no longer has jurisdiction over MVP’s construction permits,” Manchin said on Twitter. “This new order halting construction is unlawful, & regardless of your position on MVP, it should alarm every American when a court ignores the law.”
