A slew of environmental groups said this week that Mountain Valley Pipeline’s recent efforts to have federal court cases against it dismissed are based on an unconstitutional exercise of power by Congress.
Mountain Valley Pipeline officials say that a project-specific provision in the recently passed national debt-ceiling legislation removes the ability of courts to review government approvals needed to complete the 303-mile natural gas pipeline through Virginia and West Virginia, and therefore multiple cases challenging those approvals should be dismissed.
In responses filed late Monday, pipeline opponents argue that by removing the courts from the equation, Congress is picking a winner — Mountain Valley Pipeline — in those cases and therefore violating the separation of powers between the legislative and judicial branches.
“Whatever happened to checks and balances? Congress should never have overextended its powers to try to tell the courts how to do their jobs,” Sierra Club Senior Campaign Representative Caroline Hansley said in a news release announcing the newest court filings in one of the cases. “When communities, climate, and habitats are at risk, there is just too much at stake.”
Mountain Valley Pipeline spokesperson Natalie Cox declined to comment on the latest filings.
“As this is a matter of pending litigation, Mountain Valley does not have any additional details or comment at this time,” Cox said in an email.
Opponents of the $6.6 billion pipeline, which was first announced in 2014, have for years said that the project harms the environment in multiple ways.
But the most recent filings specifically involve a challenge to a federal opinion that the pipeline would not hurt endangered species such as the Roanoke logperch and the candy darter, and two related challenges to federal approval for the pipeline to cross through the Jefferson National Forest on the border of Virginia and West Virginia.
On June 5, Mountain Valley Pipeline asked the Richmond-based 4th U.S. Circuit Court of Appeals, whose district encompasses the pipeline’s path, to dismiss those challenges, citing the Fiscal Responsibility Act.
The act, which President Joe Biden signed into law June 3, is best known as the recent highly publicized deal to suspend the national debt ceiling and avoid the government defaulting on its obligations.
It included a provision specific to the Mountain Valley Pipeline, authorizing all remaining permits and approvals necessary for the pipeline’s construction and operation and shielding the project from further legal challenges by removing the jurisdiction of courts to review such approvals. It also specified that the U.S. Court of Appeals for the D.C. Circuit “shall have original and exclusive jurisdiction over any claim alleging the invalidity” of the provision itself.
Mountain Valley Pipeline argues that the cases against it should be dismissed because that provision states that “no court shall have jurisdiction to review any action taken by” a government agency toward the pipeline’s construction, “including any lawsuit pending in a court as of the date of enactment of this section.”
That means, according to Mountain Valley Pipeline, that the 4th Circuit no longer has jurisdiction in the challenges brought by the environmental groups.
However, those groups argue that the court, in the words of one of the responses filed, “should reject Congress’ attempt to interfere unconstitutionally with the judicial function,” adding later that “[c]ourts must jealously guard the line between legislative and judicial power.”
Pipeline opponents also say that the 4th Circuit has jurisdiction to decide whether the Fiscal Responsibility Act’s pipeline provision itself is unconstitutional.
The response in the case involving endangered species was filed by lawyers from Sierra Club, Appalachian Mountain Advocates and the Center for Biological Diversity on behalf of Wild Virginia, Appalachian Voices, Indian Creek Watershed Association, Preserve Bent Mountain, Preserve Giles County, West Virginia Highlands Conservancy, West Virginia Rivers Coalition, Chesapeake Climate Action Network, Sierra Club and the Center for Biological Diversity.
The Southern Environmental Law Center, on behalf of the Wilderness Society, filed a similar response in the cases involving the pipeline’s passage through the Jefferson National Forest.
“This is a critically important fight to take on,” SELC attorney Spencer Gall said in a news release. “After years of faulty permits that haven’t withstood judicial scrutiny, MVP asked Congress for a free pass from the laws that every other gas pipeline in the country must comply with.”
The environmental groups’ responses mark the latest developments in a nearly decade-long history of opposition to Mountain Valley Pipeline, which proponents have said is critical to the domestic energy supply and U.S. national security.
The 42-inch-diameter pipeline is set to start in northwestern West Virginia and run into Virginia, passing through Giles, Craig, Montgomery, Roanoke and Franklin counties before connecting to a compressor station in Pittsylvania County. Pipeline officials say the project is more than 90% complete, though opponents dispute that claim.
The pipeline initially was to be completed in 2018, but construction has been halted since 2021 by permitting delays and by legal battles over the pipeline’s acquisition of private property through eminent domain and its environmental impact.
Just before the U.S. Senate voted to approve the Fiscal Responsibility Act on June 1, U.S. Sen. Tim Kaine, D-Virginia, proposed an amendment to the act that would have removed the Mountain Valley Pipeline provision, but senators voted it down, 30-69.
Kaine argued that the provision amounted to Congress putting its “thumb on the scale” and called it a “sweetheart deal for one company in one part of the U.S.”
After the Fiscal Responsibility Act was signed, Mountain Valley Pipeline reiterated its goal to have the pipeline completed by the end of this year.
“We are grateful for the full support of the White House, as well as the strong leadership of Democratic and Republican legislators for recognizing the MVP as a critical energy infrastructure project,” Mountain Valley Pipeline said in a statement on its website.
On Friday, the pipeline received the last permits it needs to complete construction, according to U.S. Sen. Joe Manchin, D-West Virginia, who was the primary driver in Congress of including the pipeline provision in the debt-limit deal.
He called the permits’ approval “great news for not only West Virginia, but the entire nation.”