West Virginia is asking the Supreme Court to review a lower court’s rulings that temporarily blocked construction of the Mountain Valley Pipeline (MVP), despite recent congressional legislation that gave the natural gas conduit a green light.
The more than $6 billion, 303-mile pipeline will stretch from northern West Virginia to Southwest Virginia before connecting with another line in North Carolina. Construction is about 94 percent complete.
According to the pipeline company, more than 300,000 miles of interstate and intrastate natural gas transmission pipelines operate every day across the country, “safely and reliably transporting natural gas for use in homes and businesses to power modern life.”
“None of these existing pipelines have undergone the extensive level of environmental research, analysis and review that has been performed on the MVP project, and we appreciate the strong support and ongoing efforts of so many men and women who, since 2015, have continued to work diligently to complete this important project.”
“We absolutely need that pipeline to go,” Mr. Justice said. “We don’t need any more delays.”
It would be “terrible” if the pipeline were “to be held up and stopped again,” the governor said.
‘Vital to the Survival of American Energy Independence’
West Virginia Attorney General Patrick Morrisey, a Republican, said that the 4th Circuit did not have jurisdiction to prevent the pipeline from moving forward. Mr. Morrisey, who also filed a brief (pdf), added that challenges to the congressional action have to be heard by a federal appeals court in the nation’s capital.“The Mountain Valley Pipeline is vital to the survival of American energy independence and affects thousands of jobs in West Virginia — its completion is also critical to our national security, the urgent need is for it to be completed as soon as possible,” Mr. Morrisey said in a statement.
Mr. Morrisey is currently seeking the 2024 Republican nomination for governor of West Virginia.
Mr. Justice is currently seeking the 2024 Republican nomination for U.S. Senate in the hope of unseating Mr. Manchin.
The emergency application in the heavily litigated case was filed on July 14 by the pipeline company in Mountain Valley Pipeline LLC (MVP) v. The Wilderness Society, court file 23A35.
The pipeline company is organized as “a series limited liability company and has members,” according to court papers. Its members that hold interests in the project are MVP Holdco, US Marcellus Gas Infrastructure LLC, WGL Sustainable Energy LLC, RGC Midstream LLC, and Con Edison Gas Pipeline and Storage LLC.
MVP spokeswoman Natalie Cox told The Epoch Times by email that the company is glad that the project has the backing of lawmakers and industry participants.
“We remain grateful for the ongoing congressional support of the MVP project, as well as that of the many shippers, end-users, union workers, and industry associations, and for the continued bipartisan leadership of Democratic and Republican legislators who have deemed the Mountain Valley Pipeline as a critical infrastructure project that is essential for our nation’s energy security, consumer affordability, and ability to effectively transition to a lower-carbon future.”
Multiple Stays
A panel of the 4th Circuit has issued multiple temporary stays halting various aspects of the construction of the pipeline based on the applications of environmentalist groups.Most recently, that court issued two stays on July 10 and a single stay on July 11 in litigation related to the pipeline. All three members of the panel voted in favor of the stays. In all three orders, the panel did not explain why it acted.
The panel members, Judge James Wynn and Judge Stephanie Thacker, were appointed by then-President Barack Obama. Judge Roger Gregory was appointed by then-President George W. Bush.
The 4th Circuit panel issued its orders despite the fact that Congress approved legislation in June fast-tracking the issuance of permits required for the pipeline. The legislative provision was part of a measure raising the national debt ceiling and depriving the 4th Circuit of jurisdiction in the legal dispute.
Environmental activists who oppose the pipeline claim the construction plan will lead to physical erosion that will diminish the quality of water and soil. They also say that in passing the legislation Congress violated the separation of powers provided for in the U.S. Constitution. The separation of powers doctrine prevents any specific branch of the government from exercising the core functions of another. The idea behind the doctrine is to discourage the concentration of power and ensure checks and balances.
Even if the Supreme Court grants MVP’s emergency application, there may still be legal obstacles in the pipeline’s way.
That is because another case involving the pipeline that the Supreme Court dealt with earlier this year is still working its way through the lower courts.
Legal Battle
The court’s decision, which came in an unsigned order with no recorded dissents, came out of a long-running legal battle between pipeline management and six landowners.Under the federal Natural Gas Act (NGA), the Federal Energy Regulatory Commission (FERC) can delegate its authority to private companies to seize land for energy projects. It delegated authority to MVP. The company purchased easements from property owners willing to agree to them but used eminent domain against those who did not. The unwilling landowners disputed the condemnation of their land for the pipeline, arguing that Congress improperly delegated its authority to FERC.
In Bohon v. FERC, the Supreme Court remanded the case to the U.S. Court of Appeals for the District of Columbia Circuit “for further consideration in light of Axon Enterprise Inc. v. FTC.”
The litigants challenging federal agencies in Axon argued they should be able to contest the way the tribunals are constituted in federal courts without first having to launch a lengthy, expensive challenge within the administrative system.
A federal district court judge in Washington, D.C., found in 2020 that he did not have jurisdiction to hear the Bohon case because a law required the parties to ask for a rehearing before the FERC.
The landowners in Bohon told the Supreme Court that it was unfair that the law compelled them to advance their separation of powers argument in front of FERC, the same agency whose authority they were disputing, and apparently the Supreme Court agreed.
The landowners’ attorney, Mia Yugo of Yugo Collins in Roanoke, Virginia, told The Epoch Times that the Bohon case is still before the D.C. Circuit.
Ms. Yugo said by email that the parties were asked by the D.C. Circuit to file supplemental briefs on the debt ceiling legislation by Aug. 7 because MVP “suddenly decided to try and make the [legislation] an issue in our case too, and filed a last-minute motion asking that the D.C. Circuit now order supplemental briefing on the [legislation].”
The motion was “a desperate attempt by MVP to rid itself of our case” after the Supreme Court revived her clients’ lawsuit. The case itself “goes to the very core of the unfettered delegation of eminent domain power in America,” she said.
Because the Bohon case is not about environmental permitting and is not before the 4th Circuit, the debt ceiling measure “should have no impact at all on our case.”
“Our case … is about the separation of powers and federal Non-Delegation Doctrine—a critical legal doctrine which reigns in unchecked agency power,” she said.
The NGA’s delegation of eminent domain power has given FERC, which she called “an unaccountable agency,” the “unrestricted power to forcibly take private property from Person A and transfer it to Person B.”
The debt ceiling legislation “does nothing to amend that unconstitutional delegation of eminent domain in the NGA,” Ms. Yugo said.
The Supreme Court could act on Mountain Valley Pipeline’s emergency application at any time.
