MORGANTOWN – Sen. Shelley Moore Capito and Reps. Alex Mooney and Carol Miller have joined with six other lawmakers to file a 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.
Their amicus – friend-of-the-court – brief comes a day after Sen. Joe Manchin filed his own.
Wednesday’s brief from Capito and her colleagues addresses the MVP opponents’ argument that Congress overstepped separation of powers in the Fiscal Responsibility Act, which approves all authorizations, permits and other approvals necessary to complete construction of the pipeline and allow it to begin operation, and directs all court challenges to the D.C. Circuit Court.
The lawmakers say in their brief, “Congress acted within its authority. It also acted sensibly and with bipartisan support. The Fourth Circuit, however, simply disregarded the law. Worse, the court did so without opinion or any articulated rationale. If this is to be a republic of laws and not of men, a recurring three-judge panel of the Fourth Circuit cannot be permitted to override the clear will of the people. Intervention is imperative.”
The brief notes that the lawmakers either represent jurisdictions through which the pipeline runs or jurisdictions impacted by the benefits of the pipeline. “Completion of the pipeline will bring a boon to economies throughout the region and reduced energy costs in neighboring states.”
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.
On July 11, the U.S. Fourth 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. Mountain Valley Pipeline LLC asked the Supreme Court on Friday to lift the stays.
The brief quotes Capito: “The Mountain Valley Pipeline is 95 percent complete and would be finished today if it weren’t for the rulings by the Fourth Circuit that have stayed or vacated multiple approvals granted by Federal and State environmental regulators. The Fourth Circuit has acted nine times with respect to the Mountain Valley Pipeline. On eight of those nine occasions, the court has either stayed or vacated an approval from a federal or a state agency.”
The brief says the merits of any constitutional challenge to the Fiscal Responsibility Act are before the Supreme Court because they were not properly before the Fourth Circuit. The Fourth Circuit’s stay orders—entered without explanation by a recurring panel of the same three judges of that court routinely assigning themselves to pipeline cases —are an “incursion on the will of the people” and beyond the Fourth Circuit’s scope of powers.
“If the stays remain in place, the brief says, “Congress’s authority will be usurped and the harm to the people will be irreparable.” MVP’s opponents must pursue their claims of invalidity it the D.C. Circuit. “This court should grant the Emergency Application and vacate the Fourth Circuit stays for lack of jurisdiction.”
Granting jurisdiction to the D.C. Circuit, the brief says, is proper because it efficiently channels all challenges to the act’s validity to a uniform forum, “one with a unique history and reputation as a national court. Indeed, the D.C. Circuit is largely considered to be the second-most important court in the country.”
In the joint announcement of the brief, Capito said, “By filing this amicus brief, my colleagues and I are speaking directly to the Supreme Court, urging them to uphold the clear intent of the language we included in the bipartisan Fiscal Responsibility Act, which was passed by Congress and signed into law by President Biden. Unfortunately, activist judges on the Fourth Circuit and radical environmental groups will stop at nothing to delay the Mountain Valley Pipeline.”
Miller commented, “While it is unfortunate that this amicus brief and case are necessary, I look forward to the Supreme Court coming to a swift decision confirming Congress’ intent to increase domestic energy production, particularly in West Virginia.”
And Mooney said, “Congress was clear when it said that judicial review of the Mountain Valley Pipeline was over. This pipeline is as much about West Virginia jobs as it is about American energy independence. The Supreme Court should recognize that Congress already resolved this matter.”
MVP opponent Sierra Club’s Executive Director Ben Jealous commented after the Fourth Circuit’s stay, “Congress’s unprecedented end run around the courts attempted to forgo proper checks and balances and declare the sinking ship that is the MVP a winner. This, as we know, was wrong from the start. Congress cannot mandate that federal regulators throw caution to the wind — environmental laws are more than just mere suggestions and must be adhered to. We expect MVP to halt all construction along the entire route.”
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