Approving a large construction project through Congress, as Democratic Sen. Joe Manchin III of West Virginia is trying to do for the Mountain Valley Pipeline in his state, is highly unusual and, according to legal scholars, rests on very thin precedent.
Manchin’s bill, part of a broader measure to overhaul the federal permitting process for many energy and infrastructure projects, would also curtail legal challenges against the pipeline and direct lawsuits filed about the project to a federal appeals court in Washington, D.C., rather than the Fourth Circuit Court of Appeals in Richmond, Va., which has dealt the companies building the pipeline a series of legal setbacks.
While federal lawmakers have intervened in decades prior to greenlight projects — including in a dispute that rose to the Supreme Court over a dam in Tennessee and an endangered fish, and in the 1970s to build an oil pipeline in Alaska — legal experts said the legislative efforts by Manchin and Capito are unusual and depart from how Congress typically operates.
“It’s just really bad public policy to basically break out a single project and say, ‘You’re going to be exempt,’” James Van Nostrand, director of the Center for Energy and Sustainable Development at the West Virginia University College of Law, said in an interview. “That’s just horrible public policy.”
The only similar example of Congress weighing in to approve a particular project Van Nostrand could recall is the case, famous in environmental circles, of the Tellico Dam in Tennessee.
After Congress passed the Endangered Species Act in 1973, an ichthyologist discovered the snail darter – a fish, not the notoriously slow invertebrate – in a river in Tennessee. Two years later, the Interior Department declared the snail darter an endangered species and its home, the Little Tennessee River, a critical habitat. The declaration threatened to thwart the construction of a Tennessee Valley Authority dam Congress funded in 1967.
Faced with evidence erecting the dam could wipe out the fish, the Supreme Court ruled in Tennessee Valley Authority v. Hill, in a 6-3 vote, that building the dam would violate the Endangered Species Act, affirming a lower court ruling.
Yet in 1979, led by Sen. Howard Baker, R-Tenn., Congress passed an unrelated spending bill that exempted the dam construction from the law. President Jimmy Carter signed the bill but said he regretted the Tellico Dam exception.
Pat Parenteau, emeritus professor of law and a senior fellow for climate policy at the Environmental Law Center at Vermont Law School, said it is “highly unusual and maybe unprecedented” for Congress to intervene in a private sector project.
“The first example of Congress approving a project regardless of any other laws, and stripping the courts of authority to review,” was the Trans-Alaska Pipeline in the 1970s, Parenteau said by email. Beyond that Alaska project and Tellico, “Congress has passed similar laws to mandate timber sales in spotted owl habitat and to delist the gray wolf in the Rockies regardless of what the ESA says,” Parenteau said, referring to the Endangered Species Act.
Though Capito last week said she supports Manchin’s bill, and low-carbon electricity companies have said they support it too, in particular citing its provisions to speed up permitting approvals for transmission lines, his legislation has run into opposition from local groups in West Virginia over the climate impacts of the project.
Senate Majority Leader Charles E. Schumer, D-N.Y., said he plans to fold Manchin’s bill into legislation to keep the government open into the new budget year, which begins Oct. 1.
Sen. Roy Blunt, R-Mo., said he was skeptical the bill would get the 60 votes needed to end debate, and some Republicans, like Sen. Mike Braun of Indiana, have said they plan to vote against the hybrid spending-and-pipeline package no matter what.
The pipeline and permitting proposal also faces opposition from the liberal wings of both the Senate and House, though few members, with Rep. A. Donald McEachin, D-Va., as an exception, have said they would vote against the spending bill if it contained the Manchin legislation.
Unlike in the Tellico case, the public is paying attention now, Van Nostrand said. “It’s not going to sneak through,” he said.
Sens. Tim Kaine and Mark Warner, Democrats of Virginia, where about one-third of the pipeline would operate, have also expressed their opposition to folding approval of the project into a broader spending package.
“My constituents in Virginia have complained significantly about workmanship problems in the Mountain Valley Pipeline,” Kaine said Thursday, noting that state agencies have halted work due to water pollution from the project. “I am not opposed to the Mountain Valley Pipeline,” he said. “I don’t think Congress should be in the business of approving pipelines or rejecting them.”
Hana Vizcarra, senior attorney at Earthjustice, an environmental law group, said input from scientists, environmentalists and communities is critical.
“It would set a dangerous precedent for handling large infrastructure projects if Congress were to direct agencies to supersede laws designed to protect our communities and environment to issue permits they otherwise would not,” Vizcarra said. “Setting aside decisions guided by such analysis is short-sighted and does not improve our process for infrastructure development.”
The federal court in Richmond has ruled against the companies building the pipeline, including in February, when it found they had not adequately considered the project’s environmental impact on endangered fish species.
In that ruling, the court invalidated a 2020 biological opinion from the U.S. Fish and Wildlife Service for the project, dealing a setback to the pipeline.
“We recognize that this decision will further delay the completion of an already mostly finished Pipeline, but the Endangered Species Act’s directive to federal agencies could not be clearer: ‘halt and reverse the trend toward species extinction, whatever the cost,’” the three-judge panel wrote.
Manchin’s bill would move legal fights over the pipeline out of the Fourth Circuit and to the U.S. Court of Appeals for the District of Columbia.
Natalie Cox, a spokesperson for Equitrans, one of the companies building the pipeline, said by email the project is more than 90 percent complete when taking into account all aspects, such as “welding, trenching, pipe laid, tree felling, construction of compressor stations.”
“This new legislation creates a very defined set of rules that provides for the continuation of a thorough review and approval process, which is led by the expertise of federal agencies and provides best practices for public participation,” Cox said of Manchin’s bill.
“With total project work roughly 94 percent complete, Mountain Valley remains committed to working diligently with federal and state regulators to secure the necessary permits to safely and responsibly finish construction, and we remain committed to bringing the pipeline into service in the second half of 2023,” Cox said.
Environmental groups dispute that 94 percent figure, citing reports the builders sent to the Federal Energy Regulatory Commission.
Referencing a 2022 report filed with FERC, Lorne Stockman of the climate advocacy group Oil Change International, said, “MVP is only half-done or 56% complete to full restoration.”
Autumn Crowe, program director at West Virginia Rivers, helps train average citizens how to spot water pollution along the course of the pipeline.
The project has been denied federal permits because the companies building it did not include required data upfront, Crowe said in an interview.
“There was a lot of information that should have been in their permits that was not in their permits,” Crowe said.
Before completion, the project needs and does not have permits from the Fish and Wildlife Service, the Bureau of Land Management, the Forest Service and the Army Corps of Engineers, Crowe said.
For Congress to approve the pipeline when the companies building it have not followed environmental laws would feel like they’re getting special treatment, she said.
“It’s basically telling this company that they’re above the law,” Crowe said. “It’s saying to West Virginia that our water, our rights are able to be sacrificed.”