Mountain Valley Pipeline Completion Now Depends on SCOTUS

( – Construction for the Mountain Valley Pipeline, in which fewer than four miles of the over 300-mile project remain incomplete, was halted after the Fourth Circuit of the U.S. Court of Appeals issued two orders staying the construction.

However, Congress had previously authorized the construction’s completion, as well as the automatic approval of all remaining permits via section 324 of the Fiscal Responsibility Act of 2023. The law specifically restrains judicial review on all remaining permits.

This has prompted the Mountain Valley Pipeline to file an emergency application with Supreme Court Chief Justice John Roberts in an effort to have the appellate court’s stay overturned. The application was filed by former Solicitor General Donald Verelli, which argues that the Fourth Circuit had no legal basis to halt the construction due to Congress explicitly forbidding judicial review.

The Fourth Circuit was convinced by the argument laid out in an amicus brief arguing that Congress cannot end the legal challenges to the pipeline’s construction without “amending substantive law.” However, it would appear that Congress technically did amend substantive law by passing the Fiscal Responsibility Act, which clearly restricts judicial intervention.

As Reason Magazine notes, environmentalists have only been able to challenge the Mountain Valley Pipeline in the first place because Congress decided to impose permitting restrictions in order to certify the pipeline’s construction. This means that since Congress has been setting the limitations all along, Congress can also pass new laws that clear those earlier limitations and approve the required permits.

This means that the Fourth Circuit most likely lacks the legal basis and jurisdiction to halt the construction of the pipeline. Such a decision seems rather clear cut, as courts cannot do things that are forbidden by laws the legislature passes. The Supreme Court now needs to consider whether the Fourth Circuit’s stay was wrong to the point where a “shadow docket” order is justified, which would vacate the stay and potentially provide relief for lost time and resources incurred.

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