Last month, the Supreme Court cleared what may be the final legal hurdle for the Mountain Valley Pipeline (“Pipeline”). The Pipeline is a roughly 303-mile natural gas pipeline spanning West Virginia and Virginia, designed to transport natural gas produced from West Virginia wells to markets along the East Coast. The Pipeline was first proposed in 2014 and was originally planned to be completed by 2018. The Pipeline has faced a series of legal challenges and regulatory hurdles, related to its use of eminent domain to acquire rights of way, procedural issues with regulatory approvals, and alleged damage from its construction practices.
On July 27, 2023, the Supreme Court issued an unsigned order that may clear the last hurdle for the Pipeline. The Supreme Court order stemmed from the Fiscal Responsibility Act of 2023 (“Act”), which was passed in June 2023 to raise the federal debt ceiling. The Act includes a provision that ratifies and approves all authorizations issued pursuant to Federal law necessary for the construction and operation of the Mountain Valley Pipeline and directs the relevant agencies to maintain those authorizations. Congress gave original jurisdiction regarding the validity of this provision to the U.S. Court of Appeals for the D.C. Circuit. The Act also made other changes to environmental law, such as streamlining of review under the National Environmental Protection Act (“NEPA”).
The Act superseded the permitting process that was underway for the Mountain Valley Pipeline. Before the Act fast-tracked the permitting process, environmental groups challenged FERC’s authorization of the Pipeline, arguing that FERC’s environmental impact statement was insufficient. The U.S. Court of Appeals for the D.C. Circuit sided, in part, with the environmental groups, stating that FERC “inadequately explained its decision not to prepare a supplemental environmental impact statement addressing unexpectedly severe erosion and sedimentation along the pipeline’s right-of-way.”
However, after the Act was passed, FERC issued an order granting Mountain Valley Pipeline’s request for approval to move forward with all remaining construction. FERC’s order notes the Act ratified all required permits and authorizations, and therefore FERC lifted all previous construction prohibitions and other conditions in FERC’s prior orders. The order notes that construction can continue notwithstanding any requests for rehearing challenging the order.
On July 10, 2023, the Fourth Circuit responded by issuing stays on several agency approvals, including approvals from the U.S. Forest Service and the Bureau of Land Management. On July 14, 2023, Mountain Valley Pipeline filed an emergency petition to the Supreme Court seeking to vacate the Fourth Circuit stays on approvals. On July 27, 2023, the Supreme Court issued a brief, unsigned order that vacates the Fourth Circuit stays on agency approvals without analysis or discussion. That order may represent the last legal hurdle to finishing construction of the Pipeline.
If you are looking for additional guidance in the administrative permitting process, DWGP can help you. DWGP has experience in every step of the environmental and energy permitting process. For questions about how we can help, please contact Jeff Genzer, Sean Neal, Peter Scanlon, or Sylwia Dakowicz.
A link to the Supreme Court’s order is available here.
