Once again, we see how Washington works and, depending on your point of view, it’s either pretty ugly or pretty clever.
I refer to the surprise provision in the debt ceiling deal hammered out by President Joe Biden and Speaker of the House Kevin McCarthy that would clear the way for the partially completed Mountain Valley Pipeline, which would run from northwestern West Virginia to Southside Virginia, where it would connect with other pipelines at Chatham.
Maybe we shouldn’t have been surprised: U.S. Sen. Joe Manchin, D-West Virginia, has been trying for a long time to get the pipeline built. His previous efforts at legislative horse-trading haven’t worked. At last he may have found a vehicle to get the Mountain Valley Pipeline through — or maybe it will meet the same fate as his other attempts. U.S. Sen. Tim Kaine, D-Virginia, has already signaled his intention to get the section involving the pipeline stripped from the bill, issuing a statement Monday that said: “Senator Kaine is extremely disappointed by the provision of the bill to greenlight the controversial Mountain Valley Pipeline in Virginia, bypassing the normal judicial and administrative review process every other energy project has to go through. This provision is completely unrelated to the debt ceiling matter. He plans to file an amendment to remove this harmful Mountain Valley Pipeline provision.”
Meanwhile, Sen. Mark Warner, D-Virginia, sends this word through a spokesperson: “While Senator Warner opposes the inclusion of language pertaining to the Mountain Valley Pipeline, he does not support defaulting on our nation’s debt. He plans to vote for the bill.”
To supporters, the pipeline is critical infrastructure. To opponents, it’s an environmental calamity. Either way, it’s now part of the Fiscal Responsibility Act of 2023 that, if passed, would keep the United States from defaulting on its debts. It’s also part of a case study in how dysfunctional Congress seems to be, no matter which party is in charge (and right now, each one of them is, just in different chambers).
Let’s review how we got here — and where this might go.
The pipeline was first proposed in 2014. It’s now partially built; the company behind the pipeline says it’s 90% done, others dispute that figure. The main impediment hasn’t been the multiple protests that the pipeline has inspired — demonstrators chaining themselves to equipment and the like — but the courts. Recent headlines about the project in The Roanoke Times, where reporter Laurence Hammack has led coverage:
Last summer, when Democrats still controlled both chambers, Congress took up a $738 billion bill that some called “the climate bill” but that was officially called the Inflation Reduction Act (probably because that sounds as if it might actually be an inflation reduction bill even though many economists said it wasn’t). It wasn’t fully a climate bill, either, even though it had a lot of climate-related provisions in it — including creating incentives for clean energy companies to locate in former “energy communities.” It also included some provisions aimed at lowering prescription drug prices and, interestingly, $238 billion in deficit reduction, something that budget hawks should have liked. In other words, it was a classic Washington bill — a mishmash of things. Since Democrats controlled the House then, that chamber wasn’t in question, but the Senate was, where Democrats then had a 50-50 tie — and where Manchin was always an unreliable Democratic vote.
To everyone’s surprise, Manchin announced he would vote for the bill. Why would Manchin, long a proponent of fossil fuels, vote for “the climate bill”? There were two reasons. One, the bill did include provisions creating tax incentives for clean energy companies to locate in former “energy communities” — i.e., direct new growth in renewable energy to the parts of the country that are losing traditional energy jobs in coal, oil and gas. The subsequent map of those eligible census tracts that was created by the U.S. Department of Energy covers virtually all of Manchin’s West Virginia, plus some interesting non-coal parts of Virginia, such as the Southern Virginia Mega Site in Pittsylvania County. Manchin could quite reasonably claim that his vote would help bring energy jobs to West Virginia.
Probably of more concern to him, though, was the promise by Senate Majority Leader Chuck Schumer — with the apparent approval of Biden — to bring to a vote Manchin’s bill on “permitting reform” that would make it easier to issue permits for energy projects, but also specifically included a reference to clear the way for the Mountain Valley Pipeline.
For a while, it looked as if Manchin had made a bad deal. Many Democrats, especially those of a more liberal variety, had no interest in voting to authorize a natural gas pipeline — and Republicans, the most supportive of fossil fuels, had no interest in helping Manchin. More to the point, they wanted to get back at Manchin for casting that decisive vote on the Inflation Reduction Act. They were willing to forgo permitting reform for a few years to give them time to come up with a good candidate to run against Manchin next year (that candidate turned out to be West Virginia Gov. Jim Justice). If they joined with liberal Democrats to vote down Manchin’s permitting reform bill, they could claim that Manchin had come up empty-handed — that he’d trade his climate bill vote for nothing. (Never mind that Republicans would be partly responsible for those empty hands.)
And that’s exactly what happened. Manchin tried to attach it to one vehicle after another — one of those “stopgap spending bills” that Congress finds itself rushed into voting on, the annual defense spending bill. All failed.
Now this. The man is persistent.
What the bill says
(1) Congress hereby ratifies and approves all authorizations, permits, verifications, extensions, biological opinions, incidental take statements, and any other approvals or orders issued pursuant to Federal law necessary for the construction and initial operation at full capacity of the Mountain Valley Pipeline; and
(2) Congress hereby directs the Secretary of the Army, the Federal Energy Regulatory Commission, the Secretary of Agriculture, and the Secretary of the Interior, and other agencies as applicable, as the case may be, to continue to maintain such authorizations, permits, verifications, extensions, biological opinions, incidental take statements, and any other approvals or orders issued pursuant to Federal law necessary for the construction and initial operation at full capacity of the Mountain Valley Pipeline.
- EXPEDITED APPROVAL.—Notwithstanding any other provision of law, not later than 21 days after the date of enactment of this Act and for the purpose of facilitating the completion of the Mountain Valley Pipeline, the Secretary of the Army shall issue all permits or verifications necessary— (1) to complete the construction of the Mountain Valley Pipeline across the waters of the United States; and (2) to allow for the operation and maintenance of the Mountain Valley Pipeline. (e) JUDICIAL REVIEW.— (1) Notwithstanding any other provision of law, no court shall have jurisdiction to review any action taken by the Secretary of the Army, the Federal Energy Regulatory Commission, the Secretary of Agriculture, the Secretary of the Interior, or a State administrative agency acting pursuant to Federal law that grants an authorization, permit, verification, biological opinion, incidental take statement, or any other approval necessary for the construction and initial operation at full capacity of the Mountain Valley Pipeline, including the issuance of any authorization, permit, extension, verification, biological opinion, incidental take statement, or other approval described in subsection (c) or (d) of this section for the Mountain Valley Pipeline, whether issued prior to, on, or subsequent to the date of enactment of this section, and including any lawsuit pending in a court as of the date of enactment of this section. (2) The United States Court of Appeals for the District of Columbia Circuit shall have original and exclusive jurisdiction over any claim alleging the invalidity of this section or that an action is beyond the scope of authority conferred by this section.
(f) EFFECT.—This section supersedes any other provision of law (including any other section of this Act or other statute, any regulation, any judicial decision, or any agency guidance) that is inconsistent with the issuance of any authorization, permit, verification, biological opinion, incidental take statement, or other approval for the Mountain Valley Pipeline.
So why would Biden, who has tried to frame himself as a climate president, and who has set a goal of creating a net-zero carbon emissions economy by 2050, support a pipeline that opponents say would spew the same emissions as 26 coal plants?
For one thing, Biden has never been a climate absolutist. Oil and gas interests think he’s against them, but environmentalists don’t think he’s against fossil fuels as much as they’d like him to be. In April, the administration approved exporting natural gas from an Alaska pipeline. Biden has also been driven by foreign policy concerns: In the wake of Russia’s invasion of Ukraine, he wants to wean Europe off Russian natural gas and sees increasing U.S. exports as one way to do that.
For another, Biden — whatever you think his faults are — can count. He knows he needs Manchin. He may not need Manchin now as much as he did last year; Democrats now have 51 votes in the Senate, not 50. But looking ahead, he needs Manchin to be reelected next year. The Senate elections next year will be difficult for Democrats; the election map doesn’t help them, even if it turns out to be a Democratic year at the presidential level. (Remember, Biden’s presidential win in 2020 didn’t sweep in a Democratic Senate; even if he’s reelected next year, he might still get stuck with a Republican Senate.) Manchin’s seat is one that could easily flip from blue to red. West Virginia is now one of the most Republican states in the country (only Wyoming cast a higher share of the vote for Donald Trump in 2020).
Manchin may not be the ideal Democrat from a Democratic perspective, but he’s the likely only Democrat who could win a Senate seat in West Virginia, a state that voted 68.6% for Trump and will likely cast that share or higher no matter who the Republican nominee is. If you’re Biden, you want to do all you can to help Manchin get reelected. That’s why Secretary of Energy Jennifer Granholm, seemingly out of nowhere, sent federal regulators a letter earlier this month backing the pipeline. And I’m sure that’s why Biden signed off on this provision in the debt ceiling deal.
I’ve seen headlines that proclaim “Republicans secure massive gas pipeline approval in debt ceiling bill.” West Virginia’s other senator, Republican Shelley Moore Capito, claims credit for getting the Mountain Valley Pipeline provision into the bill. Maybe that’s so. I wasn’t there. But politically, we know that Biden’s administration had already endorsed the pipeline. The hardest sell here may not have been Biden, it might have been McCarthy — because he’s now just deprived West Virginia Republicans of a major talking point against Manchin next year. I wouldn’t be at all surprised if Biden wanted the pipeline provision in the bill because that helps Manchin — and he’s let Republicans think it’s some big concession. Biden has always prided himself on being a savvy negotiator.
Policywise, this provision gives Manchin exactly what he wanted all along. It appears to overrule all the legal proceedings against the pipeline, orders the federal government to issue all the necessary permits, and transfers any legal challenges to the bill from the 4th Circuit Court of Appeals (which has generally been hostile to the pipeline) to the D.C. Circuit Court of Appeals (which might be friendlier). Conservatives who might otherwise cheer the completion of the pipeline might want to wonder whether this is a good precedent — someday it might be a liberal Congress that wants to overrule conservative court rulings, but not many in politics take a long view like that.
For now, we’ll have to take a short-term view: Will this provision stay in, or will an unusual coalition of Republicans mad at Manchin and Democrats mad at Biden come up with the votes to take it out?