Supreme Court eliminates latest legal barrier to Mountain Valley Pipeline

The US Supreme Court ordered July 27 that the appellate court stays blocking work on the Mountain Valley Pipeline be vacated.

“The Supreme Court has spoken and this decision to let construction of the Mountain Valley Pipeline move forward again is the correct one,” said Sen. Joe Manchin (D-W.Va.), in a statement issued shortly after the order. “I am relieved that the highest court in the land has upheld the law Congress passed and the president signed.”

A three-judge panel of the US Court of Appeals for the Fourth Circuit had blocked completion of the natural gas pipeline for years at the urging of environmental advocacy groups. The Fiscal Responsibility Act of 2023, signed into law June 3, approved all needed permits for the project and removed jurisdiction of the matter from the Fourth Circuit, but the same three judges issued a pair of stays on the project July 10 (OGJ Online, July 12, 2023).

Mountain Valley Pipeline LLC asked the Supreme Court for an emergency order vacating the stays, and the Supreme Court issued the order after receiving a quick flurry of briefs from interested parties—including the Biden administration, many members of Congress, and gas utilities—supporting the request for vacatur. The Wilderness Society filed a brief in defense of the stays.

As often happens with an emergency order, the court did not explain the legal reasoning for the decision. However, the court said it might consider issuing a writ of mandamus “in light of subsequent developments.” A writ of mandamus in this case presumably could mean that if the appellate court continues to try exercising authority over the project, the Supreme Court will tell the Fourth Circuit it has no jurisdiction over the project and will order it to dismiss complaints.

Parties in favor of the emergency order offered two basic reasons for issuing it: Congress in the new law had rendered objections to the pipeline moot by approving all needed permits “notwithstanding any other provision of law”—a legal catch phrase to override other laws such as environmental laws—and Congress mandated that any challenge to the new law must be filed in the US Court of Appeals for the DC Circuit, not the Fourth Circuit.

The case is Mountain Valley Pipeline LLC v. Wilderness Society.

Looking ahead to work

Because pipeline construction now can continue, the project may be completed before winter arrives, according to the company. The company needs to complete 3.5 miles of construction in the Jefferson National Forest plus a number of stream crossings.

“Re-mobilizing crews after a stay has been lifted may take weeks, and the actual earth-disturbing work remaining in the Jefferson National Forest will take roughly three months to complete,” the company told the Supreme Court in its request for the emergency order.

“After the first frost occurs—and in this part of central Appalachia that is typically around November 1—conditions will not allow MVP to safely complete any significant construction work until the end of winter,” the company said.

“The need for the pipeline is demonstrated by the market impact of recent events on regional gas prices for the upcoming winter heating season,” the company said. After passage of the law in early June that cleared the way for the project, regional gas prices for the winter season dropped significantly, and after the Fourth Circuit issued its stays, prices rose substantially, the company said.

The 303-mile pipeline from West Virginia will have the capacity to move 2 bfcd of gas to Eastern markets. Equitrans Midstream Corp. is the project leader and holds the largest ownership stake at more than 47%.