MORGANTOWN – Sen. Joe Manchin has filed a friend-of-the-court brief with the U.S. Supreme Court, supporting Mountain Valley Pipeline’s effort to have the court to lift a pair of stays the federal Fourth Circuit issued last week to once again block completion of the pipeline.
“I was proud to help ensure that the Mountain Valley Pipeline would finally be completed through ratification and approval of the project’s permits without further judicial review in the Fiscal Responsibility Act,” Manchin said in his announcement of the amicus brief. “But, yet again, this vital energy infrastructure project has been put on hold by the Fourth Circuit despite the new law clearly stating that the Fourth Circuit no longer has this authority.”
On July 11, the U.S. 4th Circuit Appeals Court issued a stay on the MVP under the Endangered Species Act. The federal court also granted a stay of the U.S. Forest Service’s decision to allow the pipeline to be constructed through the Jefferson National Forest while the court considers The Wilderness Society’s challenge to that decision.
Pipeline builder Equitrans Midstream – under the name Mountain Valley Pipeline LLC, asked the Supreme Court on Friday to lift the stays. Financial media outlet Seeking Alpha reported that the request went to Chief Justice John Roberts, who is responsible for handling emergency matters from the Fourth Circuit. He could act on his own or refer the request to the full court.
Manchin says in his brief that he has an interest in the case as chairman of the Committee on Energy and Natural Resources.
He says that Section 324 of the Fiscal Responsibility Act “is a valid exercise of Congress’s power to regulate interstate commerce rather than an impermissible usurpation of the courts’ judicial power.” The law determines that “the timely completion of construction and operation of the Mountain Valley Pipeline is required in the national interest.” It approves all authorizations, permits and other approvals necessary to complete construction of the pipeline and allow it to begin operation.
“In doing so, section 324 changes the law governing completion of the pipeline,” the brief says. “It supersedes the statutes pursuant to which the agency authorizations being contested in the Fourth Circuit Court of Appeals were issued, and it replaces them with a new law mandating federal agencies to issue and maintain the authorizations necessary to complete the pipeline.”
Therefore, the brief says, Section 324 moots the cases pending in the Fourth Circuit and deprives it of jurisdiction to grant the stays MVP is asking to have vacated.
MVP is a 303.5-mile pipeline that will carry natural gas from northern West Virginia to southern Virginia. Most of the pipeline is in place, except for 3.5 miles through the Jefferson National Forest and the stream crossings, which remain the focus of ongoing litigation, his brief says.
The pipeline needed federal approvals from the Federal Energy Regulatory Commission and from three others: from the Bureau of Land Management and the Forest Service for crossing the Jefferson National Forest; from the Army Corps of Engineers to cross rivers and streams; and a biological opinion from the Fish and Wildlife Service that construction of the pipeline would not jeopardize the existence of threatened or endangered species in the pipeline’s path.
Those latter three permits have been granted and blocked three times now by the Fourth Circuit, the brief says. While the MVP opponents who sought the stays – including the Wilderness Society and Appalachian Voices – contend that Congress stepped on the court’s toes and violated separation of powers by passing the law, Manchin contends, “a statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts.”
The new law supersedes the prior law the opponents cite in their case, he said. And while it removes jurisdiction from the Fourth Circuit, it expressly provides for judicial review in the District of Columbia Circuit.
When the Fourth Circuit issued the stays last week, Appalachian Voices Virginia Policy Director Peter Anderson said, “This stay is necessary to prevent the irreparable harm that would be caused by allowing MountainValley Pipeline to resume construction while important legal issues are decided. We are pleased that the Fourtth Circuit seems to recognize that Congress overreached with its Mountain Valley Pipeline provisions in the Fiscal Responsibility Act.”
David Sligh, Wild Virginia’s conservation director, said, “All we’ve ever asked is that our basic environmental protection laws, including the Endangered Species Act, be enforced. Federal officials have not yet lived up to that basic requirement on this project and the courts have had to step in. Construction on this harmful project must be ended now. ”
Manchin, commenting on the string of stays issued by the Fourth Circuit – always by the same three judges in violation of the rule judges must be chosen at random – said, “Yet again, this vital energy infrastructure project has been put on hold by the Fourth Circuit despite the new law clearly stating that the Fourth Circuit no longer has this authority. We cannot let this continue any longer. It’s a shame when members of Congress have to ask the Supreme Court to intervene to maintain the credibility of the laws that we have passed and the President has signed, but I am confident that the Court will uphold our laws and allow construction of MVP to resume.”
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