Cases dismissed against Mountain Valley Pipeline

Sept. 4, 2023

The US Court of Appeals for the Fourth Circuit has dismissed three lingering lawsuits against the Mountain Valley Pipeline, a project under construction that will transmit natural gas from West Virginia to Eastern US markets.

A three-judge panel that had blocked completion of the project for several years bowed to the authority of Congress, which recently passed a law stripping the Fourth Circuit of authority over challenges to the project.

In an opinion issued Aug. 11, the court acknowledged that Section 324 of the Fiscal Responsibility Act of 2023 approved all permits needed for the pipeline, and consequently “there is no longer a live controversy and the underlying petitions are moot. We therefore lack jurisdiction over them.”

In addition, the court acknowledged that the law gave the US Court of Appeals for the District of Columbia Circuit exclusive jurisdiction over legal challenges to the validity of Section 324.

The appeals court also had to deal a US Supreme Court order issued July 27. That order required the appellate court to lift its stay on construction of the pipeline and included an implicit warning that the Supreme Court might issue a writ of mandamus to order the appellate court to dismiss the cases (OGJ Online, July 27, 2023).

The most prominent of the pending cases was The Wilderness Society v. United States Forest Service.

Judge James Winn wrote the Fourth Circuit opinion with support from fellow judges Roger Gregory and Stephanie Thacker, who wrote concurring opinions focused on their complaints about losing jurisdiction and being criticized as activists.

“Congress’s use of its authority in this manner threatens to disturb the balance of power between co-equal branches of government,” wrote Gregory. Thacker complained that “we have been variously referred to by certain media and politicians as overstepping, activist, willful, ignoring the law, and a judicial hellhole.”

Equitrans Midstream Corp., operator of the project, has said it intends to complete construction of the Mountain Valley Pipeline by yearend at an estimated total project cost of about $6.6 billion.

When completed, the 42-in. OD, 303-mile line will have capacity to transmit 2 bcfd of gas. The project still needs completion of 3.5 miles in the Jefferson National Forest plus a number of stream crossings. Equitrans has the largest ownership stake at about 47%. Other large owners include NextEra Energy Inc. and AltaGas Ltd.