Mountain Valley Pipeline Beats the 4th Circuit and Progressives but for How Long?

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Friday, a rogue panel of the Fourth Circuit Court of Appeals bowed to the inevitable and obeyed a Supreme Court order halting its illegal interference in the construction of the Mountain Valley Pipeline and opening the possibility that the 303-mile gas pipeline might eventually be finished.

In a begrudging opinion dismissing the litigation, Obama-appointed Judge James Wynn said:

Armed with this new legislation enacted specifically in their favor, Respondents — the federal agencies and the Mountain Valley Pipeline — moved in this Court for the dismissal of the petitions. 

Upon consideration of the matters before us, we must grant Respondents’ motions to dismiss.

The Mountain Valley Pipeline began construction in 2018 to bring natural gas from West Virginia to Southern Virginia. It had a projected finish in the Fourth Quarter of 2019. It has been the subject of relentless lawfare in the Fourth Circuit that forced Congress to step in to remove jurisdiction from the Fourth Circuit. Undaunted, the Fourth Circuit was in the process of holding hearings to determine if Congress had overstepped the authority given by Article 3, Section 2 of the US Constitution to remove the MVP from judicial review when the US Supreme Court told them to knock it off; see The Supreme Court Slaps Down a Lawless Court in the Dumbest Way Possible.

According to the provisions West Virginia Senator Joe Manchin inserted in Biden’s Inflation Reduction Act, any future litigation must be prosecuted in the DC Circuit.

Judge Wynn wasn’t the only one with hurt feelings. Judge Roger Gregory (Clinton recess appointment, nominated again by Bush) was downright sulky.

There can be no mistake, however, that Section 324 is a blueprint for the construction of a natural gas pipeline by legislative fiat. If that provision is likewise constitutionally sanctioned, then Congress will have found the way to adjudicate by legislating for particular cases and for particular litigants, no different than the governmental excesses our Framers sought to avoid. For that reason, I fear Congress has employed this Court’s constitutionally directed deference to legislative prerogatives to undermine the Constitution and, in the process, it has made the Court an accessory to its deeds. If that is so, I wonder if Section 324 is a harbinger of erosion not just to the environment, but to our republic. That, only our Supreme Court can decide.

What Gregory is bemoaning is an assertive Congress. The environmental laws that Gregory is chomping at the bit to defend are not based on the US Constitution. They are creatures of lobbying done by environmental groups and log-rolling by agency bureaucrats. The fact that Congress said, “enough of that nonsense, we want the MVP built,” is an entirely legitimate use of legislative power. Gregory seems to see the courts as an executive branch agency entitled to interfere in a  technical process at the service of a particular political faction.

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