The Fourth U.S. Circuit Court of Appeals has once again halted construction on the Mountain Valley Pipeline (MVP), despite Congress stripping the court of jurisdiction over the MVP in the debt-ceiling bill signed into law by President Joe Biden on June 3.
The 303-mile pipeline, first proposed in 2014, is roughly 94 percent complete. Upon completion the MVP will have the capacity to carry 2 billion cubic feet of natural gas from its starting point in Wetzel County, West Virginia near the Marcellus and Utica shale formations to its terminus in Pittsylvania County in southern Virginia for distribution throughout the Southeast.
The Fourth Circuit Court issued its order on the MVP on July 10, staying construction of a 3-mile section of the pipeline that traverses the Jefferson National Forest, as well as a another stay on July 11 over separate litigation arguing the MVP violates the Endangered Species Act.
Pipeline Approved by Law
The bipartisan Fiscal Responsibility Act (FSA) signed by President Biden contained a provision granting the pipeline all remaining necessary approvals and removing jurisdiction over the MVP from the Fourth Circuit Court of Appeals, which has issued numerous stays on the pipeline before, to the District of Columbia Court of Appeals, in order to expedite the long-delayed project’s completion.
Preventing environmentalists and activist judges from interfering with the pipeline’s completion was precisely why Congress add the MVP provisions in the FSA, said Sen. Joe Manchin (D-WV) in a statement.
“The law passed by Congress & signed by POTUS is clear—the 4th Circuit no longer has jurisdiction over Mountain Valley Pipeline’s construction permits,” said Manchin, after the stay. “This new order halting construction is unlawful, and regardless of your position on the Mountain Valley Pipeline, it should alarm every American when a court ignores the law.”
‘Worst Sort of Judicial Activism’
The fourth circuit should never have heard this case, and should have recused itself based on the plain language of the law, says Steve Milloy, founder and publisher of JunkScience.com.
“This is the worst sort of judicial activism,” said Milloy. “Congress expressly removed jurisdiction from the 4th Circuit Court of Appeals and gave it to the D.C. Circuit Court of Appeals. If there is going to be litigation about the law, it would have to be conducted in the D.C. Circuit. A petulant 4th Circuit cannot ignore and overrule a facially valid law against itself.”
Manchin filed an amicus curiae brief with the U.S. Supreme Court on July 18 asking it to overturn the Fourth Circuit’s ruling.
“We cannot let this continue any longer,” Manchin said. “It’s a shame when members of Congress have to ask the Supreme Court to intervene to maintain the credibility of the laws that we have passed and the President has signed, but I am confident that the Court will uphold our laws and allow construction of MVP to resume.”
A joint brief from nine members of Congress, including the rest of West Virginia’s congressional delegation, was filed on July 19. They were joined by a brief from the Biden Administration on July 21.
“Whatever benefit respondents or the court of appeals might believe would be gained by having the agencies again reconsider the challenged actions, Congress has determined that further reconsideration is unwarranted and has prioritized MVP’s ‘timely’ completion over interests addressed by any other federal statutes,” the Biden administration’s filing stated.
The MVP was due to be completed by the end of 2023 before the Fourth Circuit’s stay.
Tim Benson (tbenson@heartland.org) is a senior policy analyst with Heartland Impact.
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