Capito, Mooney and Miller join brief urging chief justice to allow pipeline to roll on

West Virginia’s congressional delegation again weighed in for completion of the Mountain Valley Pipeline.

Senator Shelley Moore Capito, Congressman Alex Mooney and Congresswoman Carol Miller signed a brief urging the chief justice of the United States to intervene for the pipeline.

Construction was halted, at least temporarily, by an appeals court panel. Then the pipeline developers filed an emergency intervention request to the chief justice.

“By filing this amicus brief, my colleagues and I are speaking directly to the Supreme Court, urging them to uphold the clear intent of the language we included in the bipartisan Fiscal Responsibility Act, which was passed by Congress and signed into law by President Biden,” stated Capito, R-W.Va.

Senator Joe Manchin, D-W.Va., filed a similar brief earlier this week.

The representatives are chiming in during a court system conflict over whether Congress can mandate the pipeline project’s completion without addressing the underlying law.

The $6.6 billion 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.

West Virginia’s delegation played key roles in that section intervening with the pipeline, which crosses nine of the state’s counties.

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 last week to buy time to examine those questions.

Then, the pipeline developers kicked the question upstairs. They filed for an emergency intervention by John Roberts, chief justice of the United States.

The Mountain Valley Pipeline developers want Roberts to vacate the lower court’s stays and get construction back on track before winter. Each justice is assigned to circuits to handle such applications, and Roberts has the Fourth Circuit, which includes the region where the pipeline is being developed.

The chief justice has asked for a response by the plaintiffs — the environmental groups — by 5 p.m. July 25.

The overriding question is whether Congress overstepped its constitutional authority by mandating outcomes by the executive branch or halting review by the judicial branch.

The brief signed by Capito, Mooney and Miller focuses on a narrower but still important aspect of the issue.

The section of law passed by Congress specified that the jurisdiction of any challenge would be the Court of Appeals for the District of Columbia. The representatives contend, then, that the Fourth Circuit has improperly picked up the challenge.

“The Act provides Respondents with their day in court. But today is not that day, and the Fourth Circuit is not that court. Congress did not preclude judicial review for claims that challenge the Act’s validity. Rather, Congress directed that judicial review of those questions should occur in a single forum: the D.C. Circuit,” according to the brief.

“If the stays remain in place, Congress’s authority will be usurped and the harm to the people will be irreparable.”

Meanwhile, the conflict is still playing out in the Fourth Circuit Court of Appeals.

The appeals judges consolidated the two cases brought by the Wilderness Society and set oral arguments for 10 a.m. July 27 at the Lewis F. Powell Jr. Federal Courthouse in Richmond, Va. The appeals judges in the case are Roger Gregory, James Wynn and Stephanie Thacker, a West Virginian.