Manchin’s Gas Pipeline Enjoys Rare Legal Protection in Debt Deal

A powerful senator inserted language into a must-pass bill approving an Appalachian project in his home state that faced adverse legal rulings in recent months. Then, a Democratic president reluctantly signed the bill, fearing a lengthy battle over one project would sink his broader agenda.

The debt limit negotiations playing out in Washington this week over approval of the controversial Mountain Valley Pipeline, backed by Sen. Joe Manchin (D-W.Va.), are set to follow a roadmap established more than 30 years ago.

Tennessee’s Tellico Dam faced decades of opposition from local residents, and even a US Supreme Court ruling that found it violated the Endangered Species Act. But construction on the dam was finally completed in 1979 after a key Senate Republican in the state, Howard Baker, was able to get legislation authorizing the project through Congress. Once President Jimmy Carter signed the bill, the valley was subsequently flooded, and the dam was able to withstand any legal challenge.

“Manchin had the blunt force, just as Howard Baker had the blunt force,” said Zygmunt Plater, professor at Boston College Law School and a litigator against the Tellico Dam. “There are ways to litigate, but the chances of success are a great deal smaller unless the political atmosphere, the political climate, changes.”

Congressional authorization of project permits, and an explicit limit of judicial review of those permits, raise the bar for challenges by opponents who have fiercely, and in many cases successfully, argued that the natural gas pipeline is not in the public interest and threatens the environment.

“I can’t think of a basis for arguing that there’s a constitutional right for a person to challenge authorization of a project,” said Peter Whitfield, partner at Sidley Austin LLP specializing in environmental law. “I would imagine those challenges would be very, very difficult.”

Pipeline Win

The bill—which is still under debate by lawmakers facing a possible default of the country’s debt by June 5—orders the approval of the 303-mile pipeline planned to deliver as much as 2 billion cubic feet a day of gas through West Virginia and Virginia to the US Southeast.

Congress “hereby ratifies and approves all authorizations, permits, verifications, extensions, biological opinions, incidental take statements, and any other approvals or orders issued pursuant to federal law necessary for the construction and initial operation at full capacity of the Mountain Valley Pipeline,” the bill declares.

The project is in the national interest, the bill states, echoing comments of support made in recent weeks by Energy Secretary Jennifer Granholm.

The White House put the Mountain Valley Pipeline language in play toward the end of negotiations, Rep. Garret Graves (R-La.) told reporters Tuesday.

Graves, a key GOP negotiator in the debt limit talks, said it would put Democrats “on record supporting judicial limitations on a conventional energy project” and that it’s “ultimately a strategic win for Republicans.”

It’s also a long-sought win for Equitrans Midstream Corporation, the project’s lead developer that proposed the project in 2014 and received initial federal approval in 2017.

The pipeline ultimately garnered the “full support of the White House, as well as the strong leadership of Democratic and Republican legislators,” said Natalie Cox, an Equitrans spokesperson. “MVP is among the most environmentally scrutinized projects to be built in this country, having been subject to an unprecedented level of legal and regulatory review.”

Special Treatment

Project opponents, who have successfully challenged the pipeline’s federal and state permits, didn’t discuss specific legal options on the record. They vowed to fight against the plan and urged Congress to reject the pipeline approval.

Both Democrats and Republicans have expressed concern about greenlighting the natural gas pipeline in a broader, legislative vehicle because of the precedent it creates for the approval of specific projects outside of regular order for the benefit of certain lawmakers.

Sen. Tim Kaine (D-Va.) said he plans to propose an amendment in the upper chamber to strip the language from the bill. Rep. Raul Grijalva (D-Ariz.), the top Democrat on the House Natural Resources Committee, said in a statement he opposes the debt limit bill because it “threatens our climate goals by mandating approval of the disastrous Mountain Valley Pipeline.”

The pipeline is a “failed project that could not be built but for special treatment from Congress, that we see is wildly out of step” with good governance practices, said Spencer Gall, staff attorney for the Southern Environmental Law Center.

One provision of the debt limit bill opened a path for legal challenges: It designates that the US Court of Appeals for the District of Columbia Circuit can hear “any claim alleging the invalidity of this section or that an action is beyond the scope of authority conferred by this section.”

“That could be an implicit admission that there might be statutory contradictions that need to be straightened out,” Plater said. “If it is that drastic, it invites constitutional challenge based on private property rights, based on other types of substantive due process.”

On May 26, hours before the debt deal was announced, the DC Circuit ordered the Federal Energy Regulatory Commission to prepare a supplemental environmental impact statement for the pipeline or better explain why one isn’t necessary. The three-judge panel ruled the regulator failed to adequately explain its decision to not prepare a supplemental analysis on erosion and sedimentation along the pipeline’s route.

Broad Authority

Some legal experts pointed to the Tellico Dam as a striking historical example of congressional power.

In 1978, the US Supreme Court agreed with opponents that the project should be halted because it would harm the snail darter, a tiny fish protected under the Endangered Species Act. “It is clear that the TVA’s proposed operation of the dam will have precisely the opposite effect, namely the eradication of an endangered species,” the court’s majority wrote, referring to the Tennessee Valley Authority.

But the dam was approved after lobbying by Baker, the Tennessee senator, who inserted language into an appropriations bill in September 1979. It directed notwithstanding the provisions of “any other law,” the Tennessee Valley Authority “is authorized and directed to complete the construction, operate and maintain the Tellico Dam and Reservoir project.”

A subsequent legal challenge on religious freedom grounds—the flooded area is sacred to the Cherokee Nation—failed.

The Tellico Dam is “a very similar situation where one powerful member of Congress insists on something that essentially overrules prior court decisions to allow a particular project to move forward,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School.

“You have Congress explicitly saying that—notwithstanding any other law, notwithstanding all this prior litigation—all these permits are in place and nobody can challenge them,” Gerrard said.

Experts pointed to other similar examples: Congress passed a 1986 law moving along the stalled Interstate H-3 in Hawaii. Just last year, the Inflation Reduction Act required the Interior Department to award oil and gas leases following a sale in November 2021, after a DC Circuit ruling that vacated the sale on the grounds of an insufficient environmental review.

“Congress has pretty broad authority to do what it wants, including exempting individual projects from review,” said Michael A. Livermore, a law professor at the University of Virginia. “There’d have to be some kind of constitutional challenge to stop it. I’m not sure what that looks like, although you never know.”

—Kellie Lunney contributed reporting.