The Supreme Court may soon weigh in on Mountain Valley Pipeline developers’ request to vacate a federal court’s order to halt construction on the project, which developers argue conflicts with a law Congress passed guaranteeing its completion.
Developers of the natural gas pipeline filed an emergency application Friday with Chief Justice John Roberts, who handles petitions from the Fourth Circuit Court of Appeals, asking the Supreme Court to allow the project to continue. The Fourth Circuit sided with environmental groups challenging the pipeline and temporarily halted the project last week, an order the developers argue “flew in the face” of Congress’ command.
“The court of appeals lacked jurisdiction to grant the relief it ordered (or any other),” lawyers for the developers wrote in their application. “Even assuming that court had jurisdiction, Congress has ratified the underlying agency actions and superseded any provision of law that could have conceivably served as a basis for relief.”
The law passed by Congress & signed by POTUS is clear – the 4th Circuit no longer has jurisdiction over MVP’s construction permits. This new order halting construction is unlawful, & regardless of your position on MVP, it should alarm every American when a court ignores the law.
— Senator Joe Manchin (@Sen_JoeManchin) July 11, 2023
Republican House Speaker Kevin McCarthy’s debt ceiling deal required agencies to permit construction of the pipeline, stripped courts of jurisdiction to review agency actions granting approval and transferred future litigation relating to the law from the Fourth Circuit to the D.C. Circuit.
Case Western Reserve Law Professor and Coleman P. Burke Center for Environmental Law Director Jonathan Adler told the DCNF it “appears the Fourth Circuit overstepped” its authority in this case.
“The Constitution gives Congress control over the jurisdiction of the federal courts, and Congress has clear authority to determine which courts should hear which sorts of claims,” Adler said. “Further, Congress has the clear authority to exempt specific projects from the regulatory and permitting requirements that Congress itself imposed.”
University of Toledo law professor Evan Zoldan told E&E News the case is about “where the line is between the legislative power that Congress has, and the judicial powers that the courts have.”
“Supreme Court cases are a little messy on the subject of Congress changing the law in ways that are directed toward a particular lawsuit or a particular project,” Dan Farber, faculty director the Center for Law, Energy & the Environment at the University of California, Berkeley, told E&E News.
Democratic Sen. Joe Manchin of West Virginia criticized Fourth Circuit judges last week, calling their order “unlawful.”
“The law passed by Congress & signed by POTUS is clear – the 4th Circuit no longer has jurisdiction over MVP’s construction permits,” Manchin tweeted. “This new order halting construction is unlawful, & regardless of your position on MVP, it should alarm every American when a court ignores the law.”
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