The contested Mountain Valley pipeline now has a clear path to completion, but its pending boost from Congress has sparked a new round of debate over President Joe Biden’s energy and climate agenda.
A bill to raise the national debt ceiling would greenlight all permits needed for Mountain Valley’s “construction and initial operation at full capacity,” according to text released Sunday. Members of the House and Senate could approve that legislation in the coming days despite some vocal opposition.
The $6.6 billion project known as MVP is designed to transport natural gas more than 300 miles from West Virginia to southern Virginia. Legal experts said Congress’ proposed legislation would likely shield the development — which has seen permit after permit tossed out by the 4th U.S. Circuit Court of Appeals — from new efforts to hold it up in court.
“MVP’s approvals would be virtually unassailable, unless someone were to challenge the legislative provision itself,” if the bill is approved by Congress, said Jennifer Danis, federal energy policy director at New York University’s Institute for Policy Integrity.
Developers of Mountain Valley, which was initially approved by federal energy regulators in October 2017, said earlier this month that they were still aiming to place the project in service this year. Project opponents had argued that seemed increasingly unlikely.
Last month, Energy Secretary Jennifer Granholm signaled the Biden administration’s support for the pipeline when she wrote a letter to the Federal Energy Regulatory Commission, saying the “MVP project will enhance the Nation’s critical infrastructure for energy and national security.” The letter triggered backlash from some Democrats.
The debt ceiling legislation would direct key agencies to issue all necessary permits and mandate that “no court shall have jurisdiction to review any action taken” that grants an approval necessary for the construction and initial operation of the embattled pipeline. A federal water permit from the Army Corps of Engineers is still needed by the project, for example, and would need to be issued within 21 days after the bill’s enactment.
If the bill is signed into law, the pipeline would no longer need a new water certification from the West Virginia Department of Environmental Protection to complete its federal approvals and restart construction, according to a congressional aide familiar with the legislation. The 4th Circuit vacated that certification at the beginning of April, prompting opponents of the project to urge investors to walk away from the 42-inch diameter pipeline.
The debt ceiling bill text states that “Congress hereby finds and declares that the timely completion of construction and operation of the Mountain Valley Pipeline is required in the national interest.”
Danis of NYU said the proposed deal includes language on Mountain Valley that “effectively tramples any barriers to project completion.”
That includes removing jurisdiction for court review for all of the project’s primary and ancillary authorizations, Danis said.
The proposal’s language affirms the legality of all the project’s existing approvals and requires the Army Corps of Engineers to issue a final water permit for the pipeline, said Dan Farber, faculty director of the Center for Law, Energy & the Environment at the University of California, Berkeley.
Farber expected the courts to uphold legislation to greenlight the Mountain Valley pipeline, but he said there could be some past Supreme Court precedent that might cause confusion about lawmakers’ authority.
Critics of the proposal could try to sue to block it by arguing that Congress did not directly amend laws like the Clean Water Act or the National Environmental Policy Act (NEPA), Farber said.
But he doubted such an attack would succeed, since the permitting proposal could be interpreted as retroactively amending existing laws.
Part of the provision also shifts jurisdiction over the pipeline to the U.S. Court of Appeals for the District of Columbia Circuit, after a number of the project’s permits have been repeatedly struck down in the 4th Circuit.
Congress’ authority to shift the project’s jurisdiction is based on the idea that the Constitution gives Congress the power to create lower courts, and so they can decide their jurisdiction, Farber said.
“However, there is some confusion about when it’s ok for Congress to remove jurisdiction to dictate the outcome of a particular case is allowed,” he said in an email.
He added: “I think the challenge would fail.”
‘Cowardice’ vs. ‘compromise’
While the section on Mountain Valley was welcomed by West Virginia Sens. Joe Manchin (D) and Shelley Moore Capito (R), it wasn’t acceptable to Sen. Tim Kaine (D-Va.).
Kaine is “extremely disappointed by the provision of the bill to greenlight the controversial Mountain Valley Pipeline in Virginia, bypassing the normal judicial and administrative review process every other energy project has to go through,” said Janine Kritschgau, a Kaine spokesperson, in an emailed statement Monday.
The senator plans to file an amendment to remove the provision related to Mountain Valley, the Kaine spokesperson added.
In a statement, Manchin said he was pleased that House Speaker Kevin McCarthy (R-Calif.) “and his leadership team see the tremendous value in completing the MVP to increase domestic energy production and drive down costs across America.”
Natalie Cox, a spokesperson for the Mountain Valley project, said Monday that developers are “grateful for the full support of the White House, as well as the strong leadership of Democratic and Republican legislators for recognizing the Mountain Valley Pipeline as a critical energy infrastructure project.”
“With a capacity of up to 2 billion cubic feet per day fully subscribed under long-term contracts, the [Mountain Valley pipeline] will serve as essential energy infrastructure that will ensure American families have reliable, affordable access to domestic energy,” Cox said.
The Biden administration has pointed to landmark investments in last year’s Inflation Reduction Act as part of its effort to shift the United States toward cleaner energy.
But environmental and conservation groups slammed the White House and Biden over the inclusion of provisions related to Mountain Valley in the debt ceiling bill. Those groups dismissed the idea that completion of the pipeline is in the national interest and said building new fossil fuel infrastructure is out of step with climate goals.
Biden “has caved in to Mountain Valley Pipeline’s political allies and betrayed his own climate and environmental justice promises,” said Russell Chisholm, managing director of the Protect Our Water, Heritage, Rights coalition, in a statement.
“His cowardice and capitulation will be his legacy,” Chisholm said. “Congress must pass a clean debt ceiling.”
White House spokesperson Abdullah Hasan called the debt ceiling legislation “a bipartisan compromise that Congressional Democrats can be proud of and that will accelerate our clean energy goals and climate agenda.”
“President Biden protected his historic climate legislation, stopped House Republicans from clawing back record funding for environmental justice projects, and secured a deal to get hundreds of clean energy projects online faster all while protecting the full scope of environmental reviews,” Hasan said in a statement Monday.
The debt ceiling deal emerged just days after a federal appeals court dealt a new setback to the Mountain Valley pipeline that could have prompted further project delays.
On Friday, the D.C. Circuit ordered FERC to explain why it had opted against completing a new analysis of the natural gas conduit after pipeline construction resulted in greater-than-expected erosion that polluted waterways.
However, the court order stopped short of tossing out FERC’s approval to build the project.
The commission claimed unpredictable rainfall led to higher levels of erosion and sedimentation from construction than FERC had anticipated, but those effects were not significant enough to warrant a supplemental NEPA review.
“But that bare conclusion, without any support or explanation, is insufficient to pass muster,” said Chief Judge Sri Srinivasan, an Obama appointee, writing the opinion for the court. Judges Patricia Millett and Robert Wilkins, both Obama picks, also joined Friday’s opinion.
Srinivasan also said FERC did not explain why it thought monitors regularly inspecting the construction site were more likely to be effective at preventing problems going forward, when state regulators documented those same controls failed to prevent sedimentation.
NYU’s Danis said the D.C. Circuit opinion would still have an effect on non-Mountain Valley-related cases.
“For example, FERC would be legally vulnerable if it doesn’t provide more ample justification for refusing to provide a supplemental [environmental impact statement] on other projects, particularly where myriad violation[s] during construction have proved its initial impacts analysis faulty,” she said in an email.