Kaine’s effort to remove Mountain Valley Pipeline provision from debt-limit deal fails

U.S. Sen. Tim Kaine, D-Virginia, on Thursday unsuccessfully tried to remove expedited approval of the controversial Mountain Valley Pipeline from the deal to address the nation’s debt ceiling, arguing that the provision amounted to Congress putting its “thumb on the scale” and calling it a “sweetheart deal for one company in one part of the U.S.”

Kaine’s amendment to the Fiscal Responsibility Act was one of 11 considered by the Senate; it was voted down 30-69. All amendments failed before the Senate ultimately voted Thursday night to approve the bill 63-36. It now heads to President Joe Biden’s desk, since the House already passed the bill, 314-117, on Wednesday. 

Treasury Secretary Janet Yellen has said that Monday is when the U.S. government would no longer have the money to pay its obligations if Congress didn’t raise or suspend the nation’s debt limit by then.

In a statement after his amendment failed to pass, Kaine said he was “deeply troubled by the unprecedented provision to cherry-pick one project and exempt it from the normal judicial and administrative review process that every other energy project has to go through.”

“Especially when this project takes away Virginians’ land, my constituents deserve a fair process,” Kaine said, referring to the Mountain Valley Pipeline’s use of eminent domain to acquire property along the pipeline route. “I left it all out on the field in the fight for my amendment to remove this harmful provision.”

The Fiscal Responsibility Act, which suspends the federal debt limit for nearly two years, includes a provision to speed up approval of the remaining permits necessary for the construction and operation of the Mountain Valley Pipeline — a $6.6 billion, 42-inch pipeline that would run 303 miles from northwestern West Virginia to southern Virginia — and shield the project from further legal challenges.

“Congress should not be putting our thumb on the scale and taking one project in the United States and saying it doesn’t have to comply with any permitting rules and it doesn’t go to judicial review,” Kaine said in a conference call with news media on Thursday before the Senate vote. “By doing so, we are hurting Virginians whose land is going to be taken for this pipeline.”

Mountain Valley Pipeline spokesperson Natalie Cox on Thursday declined to comment specifically on Kaine’s amendment but sent a statement to Cardinal News about the debt-ceiling legislation generally, saying the project is “grateful for the full support of the White House, as well as the strong leadership of Democratic and Republican legislators for recognizing the Mountain Valley Pipeline (MVP) as a critical energy infrastructure project.”

“MVP is among the most environmentally scrutinized projects to be built in this country, having been subject to an unprecedented level of legal and regulatory review,” according to the statement, which said the pipeline will help meet America’s needs for domestic energy and national energy security.

Environmental groups that supported Kaine’s amendment included the nonprofit grassroots organization Appalachian Voices, which called the provision “unprecedented interference from Congress” and said it “grants special favors to exempt the beleaguered pipeline from environmental review and court challenges.”

Kaine said before the vote Thursday he has never taken a position for or against the pipeline itself because matters such as permitting and routing of pipelines are for regulatory agencies and courts, not Congress, to handle.

“Congress shouldn’t be making these decisions, and when Congress makes them, you open the door up for lack of expertise, abuse and even corruption,” Kaine said.

On Tuesday, six Democrats among Virginia’s nine congressional representatives submitted an identical amendment in the House, but it did not pass the House Rules Committee.

Both Kaine and fellow Virginia Democratic Sen. Mark Warner voted for the debt-ceiling bill.

Warner, who voted for Kaine’s amendment, said in a statement following the vote on the full bill that he was “disappointed” by the inclusion of the pipeline provision.

“At the end of the day, I voted in favor of this bill because raising the debt ceiling is the right thing to do for our country and for the millions of Americans who are trying to get out of debt, purchase a home, save for retirement, and so much more,” he said.

The pipeline provision in the Fiscal Responsibility Act authorizes the approval of all permits necessary to construct and operate the Mountain Valley Pipeline and expedites such approval with a 21-day deadline.

It also states that “no court shall have jurisdiction to review any action” taken by federal or state agencies to approve the construction and operation of the pipeline at full capacity, and that only the U.S. Court of Appeals for the D.C. Circuit can review challenges to the provision itself in the debt-ceiling deal.

“The company is unhappy with the 4th Circuit,” Kaine said, referring to the Richmond-based 4th U.S. Circuit Court of Appeals, in whose jurisdiction the pipeline route runs and which has ruled in multiple cases involving the pipeline. “So they’re doing something that I’m kind of amazed they have the guts even to ask for. I’d be embarrassed to ask for this. They’re basically asking, this case should be, just give us all the permits and don’t let the 4th Circuit ever touch this again. … I don’t think the 4th Circuit deserves this rebuke from Congress because a company isn’t happy with your rulings.”

Kaine said that the inclusion of the pipeline provision means the D.C. appeals court would be the main avenue through which pipeline opponents could continue their resistance — by challenging the validity of the provision rather than the pipeline’s permits.

The Washington Post reported that the White House included the provision in the debt-limit negotiations in exchange for U.S. Sen. Joe Manchin, D-West Virginia, supporting the Inflation Reduction Act last summer.

Kaine said Thursday that no one from the White House gave him a heads-up that the provision would be included — he learned about it from the news media.

The pipeline is designed to connect the Equitrans Midstream transmission system in West Virginia to a Transcontinental Gas Pipeline compressor station in Pittsylvania County. In Virginia, the pipeline passes through Giles, Craig, Montgomery, Roanoke and Franklin counties before ending in Pittsylvania County.

After the project was announced in 2014, the pipeline was initially planned to be in service by late 2018, but landowners along its path, environmental activists and others have resisted its construction.

Pipeline proponents say it would provide a safe, reliable, lower-carbon fuel source; would meet demand for natural gas; and would benefit national security. Project officials say the pipeline is nearly complete, and they anticipate it will be operational by the end of this year.

“It’s time to finish this project,” Manchin said Thursday night, speaking on the Senate floor in opposition to Kaine’s amendment.

Opponents say that the pipeline is unnecessary and threatens clean water and air, and that its construction has unjustly targeted lower-income and rural communities.

Their fight against the project has included challenging state and federal environmental permits and organizing protests, including some in which participants chained themselves to construction equipment or set up camps in trees.

In Virginia alone, the state Department of Environmental Quality has fielded more than 70 complaint inspections related to the project.

The project also has been the subject of a number of lawsuits. Recent legal developments include the 4th Circuit appeals court giving the OK for construction to proceed after reviewing water permits in Virginia, but then days later vacating a similar water permit needed for construction to continue in West Virginia. 

Both cases involved state permits necessary for the pipeline to cross streams and wetlands; such crossings have been at the center of many of the environmentally focused challenges to the pipeline.