Pipeline deal in debt limit deal angers climate advocates. Is it legal?

Source: By Rachel Weiner, Washington Post • Posted: Thursday, June 1, 2023

Lengths of pipe near Elliston, Va., wait to be laid in the ground as part of the Mountain Valley Pipeline in 2019. (Charles Mostoller/Reuters)

Environmental advocates who have fought the Mountain Valley Pipeline in court for years say a deal between the White House and Congress to force its completion is corrupt and corrosive to democracy. But despite fears in some quarters that the language of the deal built into debt ceiling negotiations will upend the system of checks and balances built in the government, experts say it is likely to withstand any legal challenge.

Building the 303-mile pipeline across national forest and hundreds of streams in Virginia and West Virginia requires permits from federal and state agencies overseeing compliance with environmental laws. The U.S. Court of Appeals for the 4th Circuit, which has jurisdiction in those states, has repeatedly blocked those permits as failing to account for environmental damage, particularly construction pollution of local waterways that has led to fines against the company behind the project. Initially planned for completion in 2020, the pipeline project has dragged on for years, and its cost estimate has doubled to $6.6 billion.

The language in the debt ceiling deal — which the House approved Wednesday night — directs the federal government to approve any outstanding permits for the pipeline and blocks courts from reviewing them or any other agency action in approval of the project. Any challenge to the deal itself can be heard only by the U.S. Court of Appeals for the District of Colombia.

“Can they do this? Almost certainly, yes,” said Jay Austin of the nonprofit Environmental Law Institute. Lawmakers have made similar moves in the past, Austin said, that have been controversial but generally have been held to be constitutional.

“All the Constitution says is that there shall be a Supreme Court,” Austin said. “Congress establishes the jurisdiction of the lower courts.”

Environmental litigators said they could not think of another bill that exempted a project from all legal challenges after it had repeatedly failed to meet environmental standards.

“I think there is a separation-of-powers problem when Congress steps in to overturn judicial process at a case-specific level like this,” said Earthjustice President Abigail Dillen, whose group opposes the pipeline. “That is not how the three branches are intended to work with each other.”

Sen. Tim Kaine (D-Va.) is trying to remove the provision from the debt ceiling bill, saying in a statement that “Congress putting its thumb on the scale so that one specific project doesn’t have to comply with the same process as everyone else is the definition of unfair and opens the door to corruption.”

In 1973, Congress blocked judicial review of the Trans-Alaska Pipeline System, using language that is very similar to what is in the debt ceiling agreement. But that legislation came about after environmental groups had successfully forced extensive review of the project under the then-recent National Environmental Policy Act. And it was signed in the middle of an oil crisis triggered by the Yom Kippur War.

Six years later, Congress exempted a Tennessee dam from the Endangered Species Act so it could be built despite threatening the small snail darter fish. And a 1992 compromise over logging in Pacific Northwest woods that was the habitat of endangered spotted owls blocked litigation for and against timber mining in the region.

Advocates also point to the Trump administration’s use of a 1996 law to exempt border wall construction from environmental review as an example of government bypassing established processes to push controversial projects through. The law allows the secretary of the Department of Homeland Security to “waive all legal requirements” as necessary “to ensure expeditious construction” of barriers or roads at the border, and allowed U.S. District Courts to hear only constitutional challenges to the law. A U.S. District Court in California rejected a constitutional challenge, and the Supreme Court declined to hear an appeal.

“It’s shameful for President Biden to be using the same tactics,” said the lawyer Jean Su, who litigated that case for the Center for Biological Diversity. “He’s allowing for these Trump administration ideas to come through, that we can curtail an entire branch of our government to build these super-polluting, harmful projects.”

White House officials pushed back on the assertion, noting that the debt ceiling legislation is working through the democratic processes, whereas Trump took unilateral action. House Republican leaders and the White House have been brokering a bipartisan deal for weeks.

Sen. Joe Manchin III (D-W.Va.) tried unsuccessfully in last year’s Inflation Reduction Act to move oversight of the pipeline out of the 4th Circuit or to ensure that different judges would hear the case.

White House officials agreed to include the pipeline language in the debt ceiling agreement to honor a promise they made to Manchin last summer. To secure Manchin’s support for the Inflation Reduction Act, Democrats’ landmark climate law, party leaders agreed to pass a follow-up bill that would speed up the nation’s permitting process for energy infrastructure, including by expediting the Mountain Valley project.

The White House has defended Biden’s climate record, pointing to last year’s sweeping environmental legislation. The White House has also said Biden “secured a deal to get hundreds of clean energy projects online faster.”

White House officials have said the pipeline would likely be completed regardless of the provision in the debt ceiling talks.

“It’s something that there’s a high degree of interest in, but I think, as a practical matter, this provision doesn’t have much of an effect,” White House climate adviser John Podesta said, according to audio of a call with House Democrats obtained by The Washington Post.

A spokeswoman for Equitrans Midstream, the lead company behind the pipeline, said questions about the political process were best left to elected officials. Manchin said in a statement this week that he was “pleased” House Republican leaders “see the tremendous value in completing the MVP to increase domestic energy production and drive down costs across America and especially in West Virginia.”

Environmental groups that challenged the pipeline in court say they won repeatedly not because of any judicial bias but because those behind the Mountain Valley Pipeline had repeatedly failed to show that its construction would not cause significant damage to Appalachian waterways.

“I’ve lost many, many cases in the 4th Circuit,” said Joe Lovett of Appalachian Mountain Advocates. “This court is not in the pocket of environmentalists or soft on business or anything like that. They lost because it’s going to have unacceptable environmental impacts.”

But the Supreme Court also has approved case-specific legislation. In 2017, the court ruled that Congress could pass legislation blocking courts from hearing cases on a specific piece of land, helping a Native tribe operate a casino there.

“We understand why” that law would be seen as “unfair,” Justice Clarence Thomas wrote for a plurality of the court. “But the question in this case,” he continued, quoting from an 1869 precedent, “is ‘not favoritism, nor even corruption, but power.’”

Maxine Joselow and Tim Puko contributed to this report. This story has been updated.