Updated 9:50 a.m. July 11: This story has been updated to include comments from The Wilderness Society, Sen. Joe Manchin, D-West Virginia, and Equitrans Midstream.
Mountain Valley Pipeline attorneys on Monday reiterated their position that a Richmond-based federal appeals court should dismiss pending legal challenges against the natural gas project because that court no longer has jurisdiction.
Mountain Valley Pipeline was responding to ongoing challenges from more than a dozen environmental groups filed in the 4th U.S. Circuit Court of Appeals.
The legal issues at hand revolve around a provision in the recently passed Fiscal Responsibility Act — more commonly known as the highly publicized deal to suspend and later raise the national debt ceiling — that ordered federal authorities to approve all remaining necessary permits for the 303-mile, 42-inch-diameter pipeline through Virginia and West Virginia.
The provision also shielded the controversial pipeline from further legal challenges by removing judicial review of those permits, and it said that only the D.C. Circuit Court of Appeals has jurisdiction to hear any challenges to the constitutionality of the provision itself.
Environmental groups — including the Sierra Club, the Wilderness Society and Appalachian Voices — said in a June 26 court filing that all of that amounts to an unconstitutional violation of the separation of powers between the legislative and judicial branches, with Congress effectively picking a winner in the cases pending against Mountain Valley Pipeline.
Those groups said the cases against the pipeline should not be dismissed, and that the 4th Circuit, not the D.C. Circuit, should continue to hear them.
“Petitioner opposes dismissal solely because it says Section 324 is unconstitutional,” Mountain Valley Pipeline said in one of its responses Monday, referring to the numbered section of the Fiscal Responsibility Act specific to the pipeline. “But this is not the Court to hear that claim. Congress, in plain terms, gave the D.C. Circuit ‘exclusive jurisdiction’ to hear such claims … Congress’ message was crystal clear: if you want to challenge Section 324, you must do so in the D.C. Circuit.”
Furthermore, Mountain Valley Pipeline argues, the pipeline provision in the debt limit deal is indeed constitutional and does not infringe upon judicial power.
Mountain Valley Pipeline’s responses were filed in specific cases against the $6.6 billion project: a challenge to a federal opinion that the pipeline won’t hurt endangered species, and two related challenges to federal approval for the pipeline to cross through the Jefferson National Forest, which is on the border of Virginia and West Virginia.
On Monday, the 4th Circuit granted a stay of construction activity in the Jefferson National Forest pending a review of those related cases. The Wilderness Society, a Washington, D.C.-based land conservation group, had sought the stay ahead of work anticipated to begin there on Wednesday.
“The pipeline company is poised to begin construction on the Jefferson National Forest — clearing trees, grading, and trenching through steep mountains and sensitive watersheds — inflicting irreparable harm on [The Wilderness Society], its members, and the environment absent a stay,” the society argued in a July 3 motion.
After the stay was granted, Ben Tettlebaum, director & senior staff attorney at The Wilderness Society, said in a statement, “Time and time again, Mountain Valley has tried to force its dangerous pipeline through the Jefferson National Forest, devastating communities in its wake and racking up violations. We’re grateful that the Court has given those communities a measure of reprieve by hitting the brakes on construction across our public lands, sparing them from further irreversible damage while this important case proceeds.”
In a statement Tuesday morning, Equitrans Midstream — which holds the largest interest among project stakeholders and has said it will manage the pipeline once it’s operating — said it was “disappointed” with the stay and said the court exceeded its authority.
“We are evaluating all legal options, which include filing an emergency appeal to the U.S. Supreme Court,” the company said. “Unless this decision is promptly reversed, it would jeopardize Mountain Valley’s ability to complete construction by year-end 2023.”
U.S. Sen. Manchin, D-West Virginia, said the 4th Circuit no longer has jurisdiction over the pipeline’s permits.
“This new order halting construction is unlawful, & regardless of your position on MVP, it should alarm every American when a court ignores the law,” Manchin tweeted.
Monday’s court happenings marked the latest developments in a yearslong battle, with landowners and environmental activists opposing the pipeline over its safety, its environmental impact and its acquisition of private property through eminent domain. Pipeline supporters have argued that the project will be a safe and crucial addition to the U.S. energy supply.
The pipeline’s path begins in northwestern West Virginia, then heads into Virginia, passing through Giles, Craig, Montgomery, Roanoke and Franklin counties before connecting to a compressor station in Pittsylvania County.
Mountain Valley Pipeline has said it plans to have the project finished by the end of the year. Pipeline officials say the project already is more than 90% complete, though opponents dispute that claim.
On June 23, the U.S. Army Corps of Engineers issued a permit authorizing all remaining river and stream crossings that the pipeline requires, and on June 28, the Federal Energy Regulatory Commission issued an order authorizing all construction activities for the pipeline.
On June 29, Mountain Valley Pipeline wrote a letter to FERC, acknowledging “lingering public questions regarding the coating of the pipe and overall pipe integrity” of the pipeline, many segments of which have been exposed to sunlight for years as the project has been delayed by legal and permitting battles.
Pipeline opponents have argued that such prolonged exposure to ultraviolet radiation degrades the integrity of the pipe and makes it unsafe, necessitating the pipe be replaced or taken off site for recoating. Mountain Valley Pipeline said that if it determines any pipe sections need recoating, it will do so in the field.
On July 5, five Democrats — Jennifer McClellan, Don Beyer, Gerry Connolly, Bobby Scott and Jennifer Wexton — among Virginia’s 11 members of the U.S. House of Representatives submitted an amicus brief supporting the environmental challenges to the pipeline.
That followed a May 30 effort by those five representatives, plus Abigail Spanberger, a fellow House Democrat from Virginia, to amend the Fiscal Responsibility Act to remove the provision specific to the Mountain Valley Pipeline. Their amendment failed to clear the House Rules Committee.
On June 1, just before the Senate voted to approve the Fiscal Responsibility Act, U.S. Sen. Tim Kaine, D-Virginia, submitted an identical amendment in the Senate, which also was unsuccessful.
President Joe Biden signed the act, with the pipeline provision intact, into law June 3.