Groups 'Extremely Disappointed' by Ruling But Vow to Keep Fighting Mountain Valley Pipeline

Local and national climate campaigns on Friday expressed disappointment over an appellate court's dismissal of challenges to a partially built fracked gas pipeline in West Virginia and Virginia but pledged to continue their efforts to kill the project.

Citing a section of the debt ceiling law that President Joe Biden negotiated with congressional Republicans this spring, a three-judge panel from the U.S. Court of Appeals for the 4th Circuit dismissed cases in which green groups challenged the U.S. Fish and Wildlife Service's Endangered Species Act approvals for the Mountain Valley Pipeline (MVP) as well as the U.S. Forest Service and Bureau of Land Management's authorizations for the Jefferson National Forest.

"It is clear to us that the top levers of power in this country do not serve the good of the people of Appalachia, who they have continued to sacrifice for the whims of a corrupt, reckless fossil fuel corporation," said Russell Chisholm, managing director of the Protect Our Water, Heritage, Rights (POWHR) Coalition. "As wildfires and heatwaves terrorize our global kin, as President Biden spreads misinformation about his climate commitments, we resolve to protect our communities because we can't count on so-called 'leaders' to do so."

Jason Crazy Bear Keck, co-founder of 7 Directions of Service, was similarly undeterred, saying that "we are extremely disappointed but never surprised by the system created for profit. Such tools of oppression operate exactly as they were intended to. This terrible news does not hinder or harm our conviction, rather it proves the necessity to keep on resisting."

"The temper tantrums from corporate agents and bought-off political implants only remind the people of how terribly off-track governance has become as it relates to the protection of society and its natural environment," the campaigner added. "We continue to condemn irresponsibility, condemn systematic oppression, and condemn an all-out federal attack on our futures. We stand on what's right, what's just, and what's sustainable for our generations not yet arrived."

"We will not stop exposing the dangers and damages from this project and insisting that it be canceled."

The pipeline developer and Biden administration sought to have the cases dismissed after passing the Fiscal Responsibility Act (FRA). Section 324 of the June law fast-tracks MVP and states that only the U.S. Court of Appeals for the District has jurisdiction over "any claim alleging the invalidity of this section or that an action is beyond the scope of authority conferred by this section."

In an opinion authored by Judge James Andrew Wynn and joined by the other two panel members, the 4th Circuit—which previously paused MVP construction only to have the U.S. Supreme Court reverse those decisions—ruled Friday that green groups' "sole contention in response to the motions to dismiss was that Section 324 was unconstitutional, a claim that can only be heard by the D.C. Circuit. Therefore, the motions to dismiss must be granted for lack of jurisdiction."

Judge Stephanie D. Thacker wrote in a concurring opinion that "while I join the conclusion that Congress has acted within its legislative authority in enacting" the part of Section 324 that gives the D.C. Circuit jurisdiction, "I write separately because Congress' use of its authority in this manner threatens to disturb the balance of power between co-equal branches of government."

Judge Roger L. Gregory also raised separation of power concerns in a concurring opinion, writing 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," he added. "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."

Maury Johnson—West Virginia co-chair of the POWHR Coalition, a Preserve Monroe board member, and a landowner affected by MVP—said Friday that "I share Judge Gregory's real concern for our environment and our democracy."

Other campaigners explicitly condemned Congress for giving the pipeline developer "a free pass to edge out vulnerable species and steamroll communities in its path," in the words of Sierra Club executive director Ben Jealous.

Preserve Giles County coordinator Donna Pitt declared that "the ill-advised enactment of Section 324 of the Fiscal Responsibility Act lays bare the danger we are in if we continue to allow ourselves to be governed by the self-serving needs of fossil fuel corporations."

"The builders and political backers of the MVP could not get this destructive project across the finish line by following the rules that are supposed to apply to all projects," said Wild Virginia conservation director David Sligh. "The reason is simple. The pipeline cannot be built across these valuable and sensitive landscapes in a way that upholds our historic laws, including the Endangered Species Act."

"The Fish and Wildlife Service failed in its duties three times, so Congress and the president have attempted to give the MVP a get-out-of-jail-free card on its responsibility to protect our rare and precious species," Sligh added. "We will not stop exposing the dangers and damages from this project and insisting that it be canceled."

Earlier Friday, a pair of activists locked themselves to construction equipment at an MVP worksite on Poor Mountain in Roanoke County, Virginia—an action that was denounced by the pipeline developer and drew police to the scene.

According to Appalachians Against Pipelines, one supporter of the action said: "Any reputable scientist could tell you that this pipeline is inconsistent with a future where humans continue to live. It's that simple. The MVP is a doomsday device. It is only being built so the rich can get richer. Our 'leaders' have clearly taken a side, so it's up to us to stop this thing."