- The 4th US Circuit Court of Appeals has dismissed three lawsuits challenging permits for the Mountain Valley Pipeline. A related pipeline, MVP Southgate, could extend into North Carolina.
- Appellate judges agreed that Congress' recent debt ceiling legislation blocked the 4th Circuit from taking any action on legal complaints from environmental groups.
- The 4th Circuit's opinions raised concerns about the impact of Congress' actions on the federal separation of powers.
The 4th U.S. Circuit Court of Appeals has dismissed three lawsuits challenging permits for the Mountain Valley Pipeline in Virginia. The decision Friday ultimately could boost the prospects of the MVP Southgate extension into Alamance County.
“These consolidated cases present weighty and important questions involving the separation of powers as it relates to a project of national interest,” wrote Appellate Judge James Wynn for a unanimous three-judge panel. “Petitioners are environmental groups challenging federal agency actions that will enable the final construction and initial operation of the Mountain Valley Pipeline, a 300-plus-mile underground pipeline that will transport natural gas from West Virginia to Virginia.”
“But during the pendency of this matter before this Court, Congress proactively intervened by legislation and enacted the Fiscal Responsibility Act of 2023,” Wynn wrote, referencing the act that represented the latest congressional debt limit deal. “Section 324 of that Act purports to ratify the agencies’ actions regarding the Mountain Valley Pipeline and remove our jurisdiction over the underlying petitions.”
“Armed with this new legislation enacted specifically in their favor, Respondents — the federal agencies and the Mountain Valley Pipeline — moved in this Court for the dismissal of the petitions,” Wynn wrote. “Upon consideration of the matters before us, we must grant Respondents’ motions to dismiss.”
Any further legal action must take place at the DC Circuit Court of Appeals, Wynn explained. “[W]e conclude that Section 324(e)(1) strips this Court of jurisdiction to consider the underlying petitions, and that Section 324(e)(2) strips this Court of jurisdiction to consider Petitioners’ arguments about the constitutionality of Section 324,” he wrote. “Those arguments must be heard, if at all, by the D.C. Circuit.”
The 4th Circuit still has authority to address challenges involving future pipelines or other natural gas facilities, as well as operations of MVP not covered in the Fiscal Responsibility Act, Wynn wrote. “We save such challenges for another day.”
The 303-mile Mountain Valley Pipeline is designed to transport natural gas from West Virginia to Virginia. Owners have said that the pipeline is roughly 94% complete. It still requires a 3.5-mile section through the Jefferson National Forest, along with river and stream crossings and final restoration work.
A separate MVP Southgate project would extend another 75 miles from Virginia into central North Carolina, passing through Rockingham County and ending in Alamance County.
Congress’ action supporting MVP drew a rebuke Friday from Judge Roger Gregory in a concurring opinion. “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.”
“For that reason, I fear Congress has employed this Court’s constitutionally directed deference to legislative prerogatives to undermine the Constitution and, in the process, it has made the Court an accessory to its deeds,” he added. “If that is so, I wonder if Section 324 is a harbinger of erosion not just to the environment, but to our republic. That, only our Supreme Court can decide.”
Judge Stephanie Thacker also took aim at Congress in a separate opinion. “Congress’s use of its authority in this manner threatens to disturb the balance of power between co-equal branches of government. Such exercises of the legislative authority ‘should be viewed with great skepticism,’” Thacker wrote.
Friday’s decision addressed only the Mountain Valley Pipeline project from West Virginia to Virginia. It did not address the MVP Southgate project that would pass through Rockingham County before ending in Alamance County.
That proposed extension into North Carolina cropped up once during more than an hour of arguments July 27 at the 4th Circuit. Gregory questioned former US Solicitor General Donald Verrilli, representing pipeline owners.
Verrilli argued in favor of the motion to dismiss environmentalists’ suit against MVP permits. He cited the federal debt ceiling legislation. It included language approving the pipeline project and declaring that “construction and operation … is required in the national interest.”
The US Department of Interior and pipeline owners argued that the law limits the 4th Circuit’s ability to address legal challenges against MVP.
“We have to know when we can be judges again and actually adjudicate things,” Gregory said. “Who decides when that resumes? That’s all I’m asking.”
“In a situation in which Mountain Valley Pipeline, hypothetically, comes back to the federal government and says, ‘We want to build additional spurs, we want to build something beyond …,” Verrilli responded.
“Like in North Carolina,” Gregory interjected.
Verrilli’s response didn’t mention North Carolina or MVP Southgate specifically. He argued that permits and authorizations needed beyond “construction and operation at full capacity” of the original pipeline would be “outside the statute” tied to the debt ceiling deal.
“That’s certainly an area where there would be traditional review,” Verrilli said.
The MVP Southgate project has attracted recent attention.
The Federal Energy Regulatory Commission originally determined that the N.C.-related project had to be completed by June. Pipeline owners have requested an extension to 2026.