Question: What does it take to build a natural gas pipeline through West Virginia and Virginia?
Answer: An act of Congress, a signature from the President of the United States, and a decision by the Chief Justice of the U.S. Supreme Court.
Sadly, that is not an exaggeration.
Constructing the Mountain Valley Pipeline through the mountains for 304 miles is a remarkable and difficult engineering feat, but the hardest part has been navigating the regulatory hurdles and court challenges.
Environmentalists and other pipeline opponents found an ally in the U.S. Fourth Circuit Court of Appeals. As the Wall Street Journal opined, “Three judges… are doing the legal equivalent of lying down in front of tractors to block the Mountain Valley Pipeline.”
Every time the Equitrans Midstream Corporation, the pipeline developer, met the state or federal regulatory requirements, the opponents moved the goal posts and got a favorable ruling from the court, delaying the project yet again.
West Virginia Senator Joe Manchin managed to get Congress to add Section 324 to the Fiscal Responsibility Act directing all federal agencies to issue the remaining authorizations, and to block the Fourth Circuit from its endless reviews of the project. President Biden signed the bill into law.
Opponents went back to their friends in the Fourth Circuit, which stayed that provision of the Act, although it provided no explanation. Construction on the final few miles of the pipeline was blocked again. But then Thursday, U.S. Supreme Court Chief Justice John Roberts lifted the stay.
As our Brad McElhinny reported, “The chief justice was assigned the emergency intervention request because he has oversight over the Fourth Circuit, and then Roberts referred the case to the rest of the court.”
Any act of Congress or presidential action can be challenged in court, but those same courts do not have superpowers. The Constitution and Congress have placed limits on the jurisdiction of the lower federal court.*
West Virginia Attorney General Patrick Morrisey, who filed an amicus brief in the case, defended the actions by Washington. “Congress did what it often does: stepped in to fix what it perceived as a recurring problem with how other statues it wrote were being applied.”
It is tempting to conclude that after Congressional action and a decision by the Supreme Court’s chief justice that maybe, just maybe, the Mountain Valley Pipeline can be completed. That is unless the Fourth Circuit finds a way to lie down in front of construction equipment again.
*(Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978) (“It is a fundamental precept that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded.”)