Possible NC gas pipeline crops up once during 4th Circuit arguments

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  • The 4th U.S. Circuit Court of Appeals' hearing Thursday about the future of the Mountain Valley Pipeline included one reference to North Carolina.
  • Judge Roger Gregory asked whether federal law precluded appellate judges from considering lawsuit challenging the pipeline's proposed extension into North Carolina.
  • The U.S. Supreme Court issued an order Thursday lifting the 4th Circuit's earlier orders blocking the original pipeline in West Virginia and Virginia.

The possibility of a Mountain Valley Pipeline extension into North Carolina cropped up once during more than an hour of arguments Thursday at the 4th U.S. Circuit Court of Appeals. Appellate judges are debating whether to dismiss a case from environmental activists challenging pipeline permits.

Judges Roger Gregory, James Wynn, and Stephanie Thacker conducted their arguments Thursday morning just as the U.S. Supreme Court threw out two separate 4th Circuit orders that had blocked the pipeline project from moving forward.

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.

Thursday’s hearing addressed only the original MVP project. But questions Gregory aimed at former U.S. Solicitor General Donald Verrilli, representing pipeline owners, brought the N.C. project into play.

Verrilli argued in favor of the motion to dismiss environmentalists’ suit against MVP permits. He cited a provision in the recent federal debt ceiling legislation. It included language approving the pipeline project and declaring that “construction and operation … is required in the national interest.”

The U.S. Department of Interior and pipeline owners argue 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.

Most of Thursday’s hearing dealt with whether 4th Circuit judges had any authority to block the pipeline’s completion.

“What substantive change do you have in the law other than a license for Mountain Valley to complete this without any guardrails that were put in place? … You just gave a license and then told a court, ‘You can’t do anything about it,’” Gregory said.

Wynn asked about the limits Congress faces when it removes a case from the federal courts. “Congress can intervene. Can it intervene in any type of case we have and take away jurisdiction, and that’s the end of it?”

“Congress didn’t say to the judiciary, ‘You shall dismiss this case,’” Verrilli responded. “It said here’s the new law. Then it’s up to the court to decide whether the permits and authorizations that petitioners are challenging are ones that the statute covers and protects.”

Kimberley Hunter, arguing for one group of pipeline critics, argued that Congress went too far in blocking 4th Circuit action. “What it is doing with that act is swooping in and telling a court exactly how it has to decide a case,” Hunter said. “That’s what it has done here by ratifying the approvals which are at issue before this court. What it’s telling this court is you can’t decide whether those approvals are legal or not.”

As the 4th Circuit panel considers the original Mountain Valley Pipeline project, the MVP Southgate project also 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.