A unanimous Supreme Court stepped in to slap down an injunction by a lower court and permit the construction of the 300-mile Mountain Valley Pipeline (MVP) to continue. The pipeline began construction in 2018 to bring natural gas from West Virginia to Southern Virginia. It had a projected finish in the Fourth Quarter of 2019. It has been the subject of relentless lawfare in the Fourth Circuit that forced Congress to step in to remove jurisdiction from the Fourth Circuit, which ignored the law to issue the injunction set aside by the Court today.

The Pipeline

The pipeline starts in Wetzel County, WV (I can’t wait until the people who lost their sh** over Marse Robert and Stonewall Jackson find out about Louis Wetzel) and runs 303 miles into Pittsylvania, VA, the ancestral homeland of my people.

Image Credit: Appalachian Voices via American Prospect

The Controversy

For reasons that aren’t terribly clear, the Fourth Circuit developed a hard-on for the project. One expects the trees-not-people enviro-nazis to fight projects that bring jobs to rural areas and keep them from depopulating, but you don’t expect a federal circuit court of appeals to act like they have a personal or monetary stake in the outcome. This timeline is from Wikipedia.

July 27, 2018

• 4th Circuit Court annulled MVP LLC’s right of way through federal land, which was originally granted by the Bureau of Land Management. It was annulled on the basis of failing to comply with the National Environmental Policy Act, the National Forest Management Act and the Mineral Leasing Act.^[47]

October 2, 2018

• 4th Circuit court struck down Nationwide Permit 12, which was issued by the U.S. Army Corps of Engineers’ Huntington District. The court found that the permit overlooked a requirement by West Virginia regulators that pipeline stream crossings must be completed within 72 hours to limit environmental harm.^[49]

November 27, 2018

• 4th Circuit Court of Appeals elaborated on their October 2 decision regarding the Nationwide Permit 12, concluding that West Virginia did not follow the federally mandated notice-and-comment procedures for waiving special conditions part of the permit.^[47]

October 11, 2019

• 4th Circuit Appeals Court rescinds the Biological Opinion and Incidental Take Statement issued by the U.S. Fish and Wildlife Service^[51]

July 10, 2023

• The U.S. Court of Appeals for the 4th Circuit blocked construction of the pipeline through the Jefferson National Forest until other courts finish reviewing decisions made by the Department of the Interior concerning construction in that forest.^[69] The rest of the pipeline’s construction remains unaffected. Senators Machin [sic] and Capito of West Virginia voiced opposition to the decision as the Fiscal Responsibility Act stripped the 4th Circuit of its jurisdiction over the pipeline.^[70]

 

Congress Steps In

With the Fourth Circuit on the warpath, metaphorically, other regulators began to snipe at the project. Even though it was over 90% complete in June 2020, increasing regulatory pressure called into question the MVPs financial viability and affected its ability to find investors.

Enter Joe Manchin.

In July 2022, Chuck Schumer was trying to corral votes for Biden’s Inflation Reduction Act. Manchin had a deal. He’d take a career-ending risk and vote for the travesty (full disclosure, I’m supporting Representative Alex Mooney in his quest for the GOP nomination to face Manchin) if he could get some help on the MVP.

On Monday, his office made public details of the side agreement he struck with Senator Chuck Schumer of New York, the Democratic majority leader, House Speaker Nancy Pelosi and President Biden.

It would ensure that federal agencies “take all necessary actions to permit the construction and operation” of the gas line, known as the Mountain Valley Pipeline. The project — which has been opposed for years by environmentalists, civil rights activists and many Democratic state lawmakers in Virginia — would carry natural gas from the Marcellus shale fields in West Virginia across nearly 1,000 streams and wetlands before ending in Virginia.

…

The side deal cut by Mr. Manchin and Democratic leaders would give the United States Court of Appeals for the District of Columbia Circuit jurisdiction over all future legal challenges, taking the case away from the Fourth District, where environmentalists had found success.

The deal also used Article 3, Section 2 of the US Constitution to remove the MVP from judicial review.

Fourth Circuit to Congress: FOAD. Strong, Rude Message to Follow

On July 10, the Fourth Circuit ordered MVP to halt construction so it could review a request by enviro-nazis to stop the pipeline again. Manchin was not happy. To add insult to injury, the environmental groups were not challenging the permitting process per se; they asked the Fourth Circuit to rule that Section 324 of the bill stripping courts of jurisdiction over the MVP was unconstitutional.

The law passed by Congress & signed by POTUS is clear – the 4th Circuit no longer has jurisdiction over MVP’s construction permits. This new order halting construction is unlawful, & regardless of your position on MVP, it should alarm every American when a court ignores the law.

— Senator Joe Manchin (@Sen_JoeManchin) July 11, 2023

The Supreme Court Rules

The order from the Supreme Court issued an unsigned order removing the Fourth Circuit’s injunction.

MOUNTAIN VALLEY PIPELINE, LLC V. WILDERNESS SOCIETY, ET AL.

The application to vacate stays presented to The Chief Justice and by him referred to the Court is granted. The July 10, 2023 stay orders of the United States Court of Appeals for the Fourth Circuit, case Nos. 23-1592 and 23-1594, and the July 11, 2023 stay order of the Fourth Circuit, case No. 23-384, are hereby vacated. Although the Court does not reach applicant’s suggestion that it treat the application as a petition for a writ of mandamus at this time, that determination is without prejudice to further consideration in light of subsequent developments.

The judges, in this case, held a hearing when the Supreme Court ruling came down.

Judge James Wynn, an Obama appointee, interrupted his own question to note that he had gotten word of the order.

“I guess everybody knows now that the Supreme Court has vacated the stay in this case,” he said. “But that doesn’t affect the arguments that we’re currently hearing in this case, as I see it.” He added with a laugh that the Supreme Court intervention “was not unexpected.”

…

At the time, he and the other two judges on the panel were forcefully questioning Congress’s ability to cut them out of the process entirely

“What happened to the rule of law? That a court can decide if it has jurisdiction — that seems so simple as a democratic principle,” Wynn said. “It’s something I think that is unfortunately being lost in all the hyperbole.”

…

[Wynn] and the other judges asked the pipeline’s defenders if there was any limit on Congress’s power to take jurisdiction away from federal courts.

“Mountain Valley Pipeline can violate any environmental protection in existing law, and that’s okay?” Judge Roger L. Gregory asked. “It’s greenlit, and you have no stoplight?”

Do these sound like judges willing to obey the law? No? I didn’t think so.

The Most Roberts Thing the Roberts Court Under John Roberts Has Ever Done

Section 324 did three things. First, it ordered federal agencies to issue all permits necessary to complete the MVP. Second, it ordered all legal action concerning the MVP to the Court of Appeals for the DC Circuit. Third, it removed the question of the lawfulness of the permits granted to the MVP from court jurisdiction. What the Fourth Circuit has done is blow off instructions given to it in federal legislation and decided to do its own thing.

Roberts removed the injunction but let the court case before the Fourth Circuit proceed to decide the constitutionality of Section 324. From the tenor of the questions by the judge, they seem to be on the verge of ruling the Constitution unconstitutional. Quite honestly, there are zero constitutional issues in this pipeline case. It is simply a regulatory morass that Congress has created out of whole cloth. Once Congress said the MVP had an exception to federal laws, there was no room for the Judiciary to piddle around.

Inevitably, the Fourth Circuit will rule the law unconstitutional and impose more roadblocks, and this case will return to the Supreme Court.

What Roberts should’ve done was simply follow the law instead of being cute. His order should’ve asked the Fourth Circuit panel if they need help reading English and shut the case down. That would’ve reinforced the point his Court has been claiming they support, that is, getting the courts out of the business of legislating. It would’ve supported the Constitution and Congressional authority. It would’ve obeyed the law.

None of those things seem to be very important to Roberts so long as he can admire his own cleverness.

As a final note, the Constitution sets the tenure of judges in this way, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” When judges are in open defiance of federal law, that stops being “good Behaviour.” That is lawlessness. Just because your feelings are hurt because you can’t do your buddies favors anymore doesn’t change the law. If Kevin McCarthy had anything remotely resembling a backbone, he’d start impeachment proceedings tomorrow against these three judges. It probably wouldn’t go anywhere, but it could give them an uncomfortable experience they would remember for a while, and that would be an example to others.