The U.S. Supreme Court on Thursday gave Mountain Valley Pipeline the OK to resume construction activity following a lower court’s orders earlier this month to halt such activity.
On the same day, a little more than a hundred miles away, attorneys appeared in Richmond before three judges of the 4th U.S. Circuit Court of Appeals to argue over whether pending court cases against the pipeline should be dismissed.
Mountain Valley Pipeline on July 14 filed an emergency appeal with the Supreme Court, saying the 4th Circuit’s July 10 and 11 decisions to stay construction activity along the pipeline’s 303-mile route from West Virginia into Virginia jeopardized the goal of completing the project by the end of the year.
The Supreme Court’s brief decision posted online did not include any explanation for the ruling.
“We are grateful for the quick action of the United States Supreme Court in vacating the previously issued stay orders regarding the Mountain Valley Pipeline (MVP) project,” Natalie Cox, a spokesperson for the energy company Equitrans Midstream, which holds the largest interest in the Mountain Valley Pipeline project, said in a statement.
Environmental groups had argued that Mountain Valley would suffer no more than temporary financial loss and that the stays were necessary while pending cases involving the pipeline’s crossing through the Jefferson National Forest and its impact on federally protected endangered species remain unresolved.
Kym Meyer, an attorney for the Southern Environmental Law Center, said in an interview after the 4th Circuit court hearing that pipeline opponents were “disappointed” with the Supreme Court’s decision.
While that decision was a victory for Mountain Valley, attorneys for the pipeline project have sought to have those cases dismissed entirely, arguing that a provision in the recently passed Fiscal Responsibility Act removes the 4th Circuit’s jurisdiction over them.
Pipeline opponents, meanwhile, have argued that Congress unconstitutionally overstepped its authority in passing the act and say the cases should not be dismissed.
The act, which was primarily intended to suspend and later raise the nation’s debt ceiling, includes language that said completing the $6.6 billion, 42-inch-diameter natural gas pipeline is in the national interest. It ordered the approval of all the pipeline’s remaining necessary permits, removed judicial review of those permits, and said that only the D.C. Circuit Court of Appeals can hear any challenges to the pipeline provision’s constitutionality.
Pipeline opponents have claimed that by removing the courts’ ability to review the pending cases against the pipeline, Congress is effectively picking a winner — Mountain Valley — in those cases and therefore is infringing upon the courts’ judicial power.
Attorney Kevin McArdle, representing federal agencies and arguing in support of Mountain Valley, said Thursday that Congress was not deciding the outcome of these particular cases but was rather changing the law to carve out an exemption covering a group of cases, and it followed that the 4th Circuit should dismiss the cases at hand based on that.
“Where’s the limit on that?” asked Judge James Wynn Jr. “Congress can intervene on any type of case we have and take away jurisdiction and that’s the end of it?”
Wynn’s questions were among a number of queries posed to attorneys during a hearing that initially was scheduled for oral arguments of 30 minutes per side but which ran longer, as lawyers and judges discussed salient points of case law, the 4th Circuit’s future role in the pending cases going forward and the wording of the Fiscal Responsibility Act.
Donald Verrilli Jr., representing Mountain Valley Pipeline, argued during Thursday’s hearing that legal precedent allows Congress to remove a court’s jurisdiction if legislators are “changing the substantive law.”
Ratifying the pipeline’s necessary permits and authorization, Verrilli said, counted as such a change of law.
“Ratification does not mean these permits are lawful under existing law,” he said. “It means they are decided by Congress to be lawful regardless of whether they were lawful under previous law.”
But, asked Judge Roger Gregory, does that mean Mountain Valley now can violate any environmental protection laws?
“What would stop them?” he asked.
Coming back to that query later in the hearing, Verrilli said that while the Fiscal Responsibility Act approved Mountain Valley’s permits, the project still has to comply with the conditions of those permits.
“It’s not a free pass by any means,” he said.
Attorneys for the environmental groups argued that with the Fiscal Responsibility Act’s pipeline provision, Congress crossed the line separating the legislative and judicial branches.
“Good fences make good neighbors,” said Derek Teaney, an attorney representing a coalition of environmental groups including Appalachian Voices, Preserve Bent Mountain and Wild Virginia.
Congress showed its intent to declare a victor in the pending cases through its language in the Fiscal Responsibility Act that removes judicial review of the pipeline’s permits, Teaney argued.
Meyer, arguing on behalf of The Wilderness Society, said despite Mountain Valley’s arguments to the contrary, there is no legal standard to justify Congress’ actions.
“There has to be a line, and respectfully, here that line has been crossed,” Meyer said.
She said the argument that Congress ratifying Mountain Valley’s permits qualified as a substantive change of law is a “red herring” if ratification is used in a “super targeted way” to decide a case.
“That’s what it has done here by ratifying the approvals which are at issue before this court,” Meyer said.
Another point of discussion centered on the Fiscal Responsibility Act’s wording that it approved all permits “necessary for the construction and initial operation at full capacity of the Mountain Valley Pipeline.”
“Who, if anyone, determines when Mountain Valley Pipeline is operating at, quote, full capacity?” asked Judge Stephanie Thacker, a question that was later echoed by Gregory.
If the Fiscal Responsibility Act removes the 4th Circuit’s judicial review in cases challenging the permits necessary to complete the pipeline, Gregory asked, when does the court’s jurisdiction resume?
Verrilli, representing Mountain Valley, replied that the act authorized all permits necessary for the pipeline’s original plan, but if Mountain Valley wanted to add new parts beyond the original scope, it would need new permits not covered by the act.
The Mountain Valley Pipeline project was first announced in 2014 and initially was expected to be complete in 2018. Pipeline officials now say the work is more than 90% done, although opponents dispute that figure.
For years, the pipeline — which begins in northwestern West Virginia, then in Virginia passes through Giles, Craig, Montgomery, Roanoke and Franklin counties before connecting to a compressor station in Pittsylvania County — has been delayed by legal challenges, a number of which have come before the 4th Circuit, whose geographic region covers the pipeline’s entire route.
The three-judge panel now is tasked with deciding whether to dismiss the cases against Mountain Valley. At the adjournment of Thursday’s hearing, Wynn praised the professionalism of attorneys on both sides of the ongoing battle.
“My hat’s off to both of you,” he said.