A federal court issued a stay July 10 on further construction of the Mountain Valley Pipeline, a natural gas pipeline from West Virginia, despite a recent law removing that court’s jurisdiction over the project and authorizing completion of the line.
The construction halt was ordered by a three-judge panel of the US Court of Appeals for the Fourth Circuit while the court considers an argument from the Wilderness Society asking the court to overrule the recent law.
The stay was issued despite the fact that the Fiscal Responsibility Act of 2023 was passed by Congress and signed into law June 3 by President Biden, and the act explicitly removed the Mountain Valley Pipeline project from Fourth Circuit jurisdiction (OGJ Online, June 2, 2023).
Sen. Joe Manchin (D-W.Va.), who helped shape the act, issued a statement July 11 criticizing the court for ignoring the law.
“The law passed by Congress and signed by the President is clear—the 4th Circuit no longer has jurisdiction over Mountain Valley Pipeline’s construction permits,” Manchin said. “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.”
The Biden administration, in a brief filed July 10 in the Fourth Circuit, agreed that the Fourth Circuit no longer has jurisdiction in the case and added that the case is moot because Congress explicitly approved all necessary permits for the line.
The case is The Wilderness Society v. United States Forest Service.
What the law says
Section 324 of the Fiscal Responsibility Act specifies that, “notwithstanding any other provision of law … Congress hereby ratifies and approves all authorizations, permits, verifications, extensions, biological opinions, incidental take statements, and any other approvals or orders issued pursuant to federal law necessary for the construction and initial operation at full capacity of the Mountain Valley Pipeline.”
The law then specifies that no court shall have jurisdiction to review the approvals and permits necessary for the construction and operation of the line, again using the legal formula phrase “notwithstanding any other provision of law.”
As for any challenge to Section 324 itself—as distinct from the pipeline project—the law specifies that the US Court of Appeals for the District of Columbia Circuit “shall have original and exclusive jurisdiction over any claim alleging the invalidity of this section.”
Advocates challenge law
The Wilderness Society, an environmental advocacy group, filed a brief June 26 to argue to the Fourth Circuit panel, “This court has the authority and obligation to review Section 324, declare it unconstitutional, and deny the motions to dismiss.”
Mountain Valley Pipeline LLC, which wants the Fourth Circuit to dismiss its litigation over the pipeline, filed a July 10 response to the Wilderness Society by saying, “Petitioner opposes dismissal solely because it says Section 324 is unconstitutional. But this is not the court to hear that claim. Congress, in plain terms, gave the D.C. Circuit ‘exclusive jurisdiction’ to hear such claims.”
The pipeline is an Equitrans Midstream Corp. project that has been stalled for years by the same trio of Fourth Circuit judges. It is designed as a 303-mile, 42-in. OD line with capacity to transmit 2 bcfd of natural gas to interconnections serving Eastern US markets.
The Constitution created the Supreme Court but not the lower courts, which the Constitution left to Congress to establish. As explained by the Administrative Office of the US Courts, one of the first acts of Congress was the Judiciary Act of 1789, which established the federal court system and specified that Congress could regulate the jurisdiction of all federal courts.