Sen. Joe Manchin’s legislative deal to press the Biden administration to approve the Mountain Valley Pipeline and make sure appeals avoid a court that has struck down the project’s permits is unusual and could face legal challenges, energy analysts said.
Lawmakers have rarely, if ever, pushed agencies to permit a project such as the 304-mile natural gas pipeline project in West Virginia and Virginia that has faced legal setbacks, they said.
The deal also would direct all appeals to the U.S. Court of Appeals for the District of Columbia Circuit, instead of the Fourth Circuit.
Lawmakers telling courts how to work on cases “would be problematic, and the authority of Congress to be so prescriptive would likely be challenged in courts as violating the separation of powers,” said James Van Nostrand, a law professor and director of the Center for Energy and Sustainable Development at West Virginia University.
Van Nostrand pointed to one example of Congress singling out one energy project for approval: In 1979, Congress essentially carved out the Tennessee Valley Authority’s Tellico Dam following a US Supreme Court decision that precluded the project from moving forward because of its impact on an endangered species, the snail darter.
While there was little resistance at the time, “that would not be the case for any action with respect to the MVP, as the project has been heavily litigated and is very high profile at this point,” he said.
Manchin’s office didn’t immediately respond to a request for comment. He told reporters last week that the permitting process “has been hindering us to produce energy we need to be self-reliant,” citing holdups over Mountain Valley.
The deal to require agencies to “take all necessary actions to permit the construction and operation” of the pipeline. It was part of broader permitting provisions agreed to by Democratic leaders to woo Manchin (D-W.Va.) to support a separate deal providing tax credits and billions of dollars in spending to address climate change and other issues.
If Congress were to pass a presidential priority list for specific permit decisions, it would “likely place enormous pressure on the agency to push a specific project through, regardless of issues raised,” said Suzanne Mattei, an energy policy analyst for the Institute for Energy Economics & Financial Analysis.
“Having Congress institutionalize presidential pressure on an agency would be an extraordinary politicization of the agency’s adjudicative review process,” Mattei said. “Congress should consider the implications.”
The project developers, and the oil and gas industry more broadly, have praised the permitting provisions.
MVP is being recognized as a critical infrastructure project that is essential for our nation’s energy security, energy reliability, and ability to effectively transition to a lower-carbon future,” Natalie Cox, a spokeswoman for a joint venture led by Equitrans Midstream Corp. and other energy companies, said in a statement.
“None of these existing pipelines have undergone the extensive level of environmental research, analysis and review that has been performed on the MVP project,” Cox wrote.
Pipeline Opponents Outraged
Construction on the 303-mile Mountain Valley Pipeline, which crosses Manchin’s home state of West Virginia, has stalled after a federal court in January rejected a permit to cross a national forest following a challenge by environmentalists.
Project’s opponents, who have been successful in challenging the project’s permits in the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., expressed outrage and pledged to dig in and ensure it does not come online.
“I have never seen this before or heard of anything so illegal being pushed for an infrastructure project approval process,” said Mary Finley-Brook, a geography professor at the University of Richmond who joined pipeline protests in May.
“If the MVP gets this type of work around, expect mass resistance,” she said, describing the kind of encampments that sprouted to oppose the Dakota Access Pipeline. “We know there are many people who would put their bodies physically in the way to block construction of this dangerous pipeline.”