The Mountain Valley Pipeline right of way and some piping is visible beside Rt. 460 Sunday, July 16, 2023, in Elliston. (Scott P. Yates for the Virginia Mercury)
The U.S. 4th Circuit Court of Appeals dismissed two long-standing legal challenges against the Mountain Valley Pipeline Friday, citing its lack of authority to hear the cases following the passage of the Fiscal Responsibility Act earlier this year.
The dismissals mean the project, which was temporarily halted by the latest legal challenges, can continue.
“Here, Congress has removed our jurisdiction to hear the merits of the present petitions,” the three-judge panel wrote in its dismissal order. “Therefore, the motions to dismiss must be granted.”
The Mountain Valley Pipeline, a 303-mile project intended to deliver natural gas from the Utica and Marcellus shale fields into Southwest Virginia, has been mired for years in legal challenges over the harms environmental groups say it poses to wildlife and water quality. As a result of those arguments, the 4th Circuit repeatedly overturned federal permits granted to the project.
This June, however, Congress passed the Fiscal Responsibility Act with a provision granting all necessary approvals for completion of the project and stripping jurisdiction from the 4th Circuit. The law also transferred jurisdiction over any challenges to the constitutionality of the provision, known as Section 324, to the U.S. Court of Appeals for the District of Columbia.
On Friday, the judges agreed Section 324 had stripped their jurisdiction over two pipeline cases the court had been hearing.
“It is well settled that Congress has the power to ratify agency action,” wrote Judge James Wynn. Furthermore, he wrote, because the Fiscal Responsibility Act transferred constitutional challenges to the D.C. Circuit, the 4th Circuit no longer has authority to hear them.
“With Section 324, Congress removed our jurisdiction in a way that mandates dismissal of the underlying petitions, which challenge agency actions that grant necessary approvals for the completion of the Mountain Valley Pipeline,” Wynn said. “Indeed, ‘no court’ has jurisdiction to review these approvals … including the D.C. Circuit.”
In separate concurring opinions, Judges Roger L. Gregory and Stephanie D. Thacker issued pointed warnings about the potential impacts of Section 324 on the principle of separation of powers.
“There can be no mistake, however, that Section 324 is a blueprint for the construction of a natural gas pipeline by legislative fiat,” Gregory wrote. “If that provision is likewise constitutionally sanctioned, then Congress will have found the way to adjudicate by legislating for particular cases and for particular litigants, no different than the governmental excesses our Framers sought to avoid.”
“Can Congress, with particular pending litigation in mind, strip a particular court of jurisdiction to hear a certain type of cases when it disagrees politically with the view of the law that court has taken in the past?” Thacker similarly asked. “As it stands, we have no clear guidance from the Supreme Court on where the line between legislative and judicial power lies, especially when Congress acts for the purpose of influencing pending litigation or even going so far as to pick a winner in that pending litigation.”
Mountain Valley Pipeline spokeswoman Natalie Cox said the company agreed with the court’s conclusion.
“Congress and President Biden declared the timely completion of construction and operation of the Mountain Valley Pipeline as being in the national interest,” Cox said. “Mountain Valley is committed to finalizing work on this critical energy infrastructure project by the end of 2023 in compliance with all approved federal and state authorizations so it can enter service and help satisfy public demand for cleaner, affordable and reliable domestic energy.”
Conversely, environmental groups expressed dissatisfaction.
Jamie Williams, president of The Wilderness Society, said the group was “deeply saddened and concerned that Mountain Valley has been granted the ability to sidestep critical conservation protections and silence the voices of community members in harm’s way.”
Spencer Gall, an attorney for the Southern Environmental Law Center, said he believes Congress violated the Constitution by guaranteeing a winner in pending court cases.
“The Fourth Circuit did not bless this gambit today and simply held that the D.C. Circuit and the Supreme Court must be the ones to confront the constitutionality,” Gall said in a statement. “We are evaluating potential next steps.”
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