West Virginia attorneys push chief justice for pipeline project’s resumption – WV MetroNews

The State of West Virginia’s brief to the chief justice of the United States maintains congressional intervention for the Mountain Valley Pipeline is constitutional, and West Virginia’s legal representatives also argue the state will benefit from the completion of the pipeline’s construction.

“Congress was right that the Pipeline’s benefits make finishing it a national priority. West Virginian jobs and tax revenues are on the line,” lawyers for the Attorney General’s Office wrote in a brief this week.

“The Pipeline will also bring essential additional natural gas supply to help meet the region’s growing needs at reasonable prices. And it will help insulate our energy sector as a whole from foreign supply challenges and domestic cyberattacks.”

West Virginia’s state attorneys submitted the brief because Chief Justice John Roberts has been asked for an emergency intervention to allow the project’s construction to progress.

The situation is a big legal tangle involving Congress and the highest levels of the nation’s court system. The overriding question is whether Congress had the authority to mandate the approval of the pipeline’s permits while declaring an end to judicial review of whether the pipeline project is abiding by federal law.

Construction was halted this month, at least temporarily, by an appeals court panel. Then the pipeline developers filed an emergency intervention request to the chief justice, who was assigned this case specifically because he is assigned oversight for the Fourth Circuit.

Roberts set a deadline of 5 p.m. Tuesday for responses and could soon make a determination. The pipeline developers have contended that unless they get a go-ahead soon, construction won’t be completed by winter.

The $6.6 billion pipeline project crosses nine West Virginia counties with the aim of transporting natural gas to East Coast markets.

All of West Virginia’s congressional delegation has participated in submitting briefs to the Supreme Court to push for the pipeline’s development. In all, 15 entities submitted briefs for the chief justice’s consideration.

A brief representing Gov. Jim Justice rolled into the filings late Tuesday, arguing on economic grounds.

“There is a resource in the ground that has tremendous monetary value to those who own it and those who work it, but only if the gas can be transported to the market. Governor Justice has a vital and powerful interest in seeing West Virginians realize the benefit of this long-delayed project,” wrote lawyers for the governor.

The pipeline project first got authorization from the Federal Energy Regulatory Commission in 2017, but its completion was repeatedly delayed by regulatory hurdles and court challenges.

Last month, Congress appeared to explicitly clear the path for the pipeline’s completion through a rider in debt limit legislation, saying all remaining permits should be ratified and that no court should any longer have jurisdiction over the actions of federal agencies on the pipeline.

Just last month, after that congressional action, Mountain Valley Pipeline got what was meant to be final approval to complete its construction from the Federal Energy Regulatory Commission.

At that time, The Wilderness Society already had two lawsuits challenging federal agencies, alleging violations of multiple environmental laws and contending the pipeline project’s permits were defective.

Since then, The Wilderness Society has been fighting motions by the pipeline developers to dismiss the lawsuits by arguing that the congressional intervention violates constitutional separation of powers principles.

A three-judge panel of the Fourth Circuit Court of Appeals issued a stay of pipeline construction earlier this month to buy time to examine those questions. Oral arguments are set for Friday morning in Richmond, Va., in that prong of the case.

The pipeline developers kicked the question upstairs by asking for emergency intervention by the chief justice.

The brief from the West Virginia Attorney General makes a specific argument that Congress specified that if there is a legal challenge to the pipeline language in the debt limit bill, jurisdiction would be with appeals court in the District of Columbia circuit — not the Fourth Circuit.

And, referring to Section 324 of the bill with the pipeline mandate, the Attorney General’s Office contends Congress was within its authority.

“Section 324 plainly leaves the Fourth Circuit without jurisdiction to hear the petitioners’ claims, and Congress’s choice to ratify authorizations and permits needed for the Pipeline are similarly clear—and legal. Section 324’s embedded policy decisions are also not a matter for constitutional concern,” the Attorney General’s Office wrote.

“Congress amends statutes all the time, including in response to judicial decisions interpreting their old versions.”

The Wilderness Society, in a brief submitted Tuesday by the environmental organization, made the opposite claim — saying Congress went farther than the Constitution permits.

“Last month, Congress enacted a statutory provision that crosses the line between legislating and judging,” wrote lawyers for The Wilderness Society. “Congress cannot pick winners and losers in pending litigation by compelling findings or results without supplying new substantive law for the courts to apply.”

A group of constitutional scholars also submitted a brief, arguing that Congress cannot dictate results in pending cases without amending the underlying substantive law.

In other words, the constitutional scholars say, Congress generally has the power to alter the nature of a situation like pipeline development by amending the underlying law including the availability of rights and remedies. But they contend that in this case, Congress took a shortcut, encroaching on the federal judicial branch’s authority.

“Section 324 of the Fiscal Responsibility Act of 2023 has one purpose only: to pick a winner in and dispose of pending cases before the courts,” wrote the lawyers, William Araiza of Brooklyn Law School, Erwin Chemerinsky of University of California, Berkeley School of Law, Caprice Roberts of Louisiana State University and Howard Wasserman of Florida International University College of Law.

“While courts must necessarily tread with extreme care before deeming a law unconstitutional for commandeering the judicial power, Section 324 presents just such a transgression. The Fourth Circuit thus acted well within its power to maintain the status quo by issuing the stays.”

The brief from the West Virginia Attorney General argues the appeals court challenge is the real transgression.

“The Fourth Circuit’s stays did not issue in a vacuum. They came as an eleventh-hour foil to a natural gas pipeline project — already years delayed in litigation — that multiple federal and state agencies have repeatedly certified will benefit millions of consumers across multiple States, while protecting our natural resources along the way,” wrote the lawyers for West Virginia.