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section 324
It's Time to Cancel the Mountain Valley Pipeline—Just Ask the People of Maui
After Hawaii saw the worst disaster in its history and people perished in a massive climate change-driven wildfire, the 4th Circuit felt they had no other choice but to dismiss lawsuits designed to protect our environment.
Aug 12, 2023
In late 2014, hundreds of landowners were thrust into a nearly decadelong fight against a conglomerate of megacorporations who wanted to build two fracked gas pipelines from the fracking fields of northern West Virginia across Virginia and ultimately end in North Carolina. The Atlantic Coast Pipeline (ACP) was being proposed by Dominion and Duke Energy, two of the nation’s largest fossil fuel energy companies. This unnecessary pipeline was proposed to cross central West Virginia into the Shenandoah Valley of Virginia. It would then split in central Virginia, with one of its tentacles heading toward Norfolk, Virginia, and the other ending near Lumbee, North Carolina.
A second fracked gas pipeline called the Mountain Valley Pipeline (MVP) was proposed by EQT, Next Era Energy, and an assortment of lesser fossil fuel companies, and would cross some of the steepest and environmentally fragile areas in the Appalachian Mountains in West Virginia and southwest Virginia. In 2019, the builders of the MVP proposed the MVP Southgate project, an extension that would cross some of the most environmental injustice communities in Virginia and North Carolina.
Both of these projects were met with fierce opposition by those living along their nearly 1,000 miles of collective proposed pathways, as well as allies and organizations across the nation. The resistance from this coalition proved to be too much for the larger, 600+ mile ACP project and in July 2020 the developers canceled the project. Suddenly the fossil fuel companies realized that their power over the people was being threatened like never before. It was only about just a few months earlier that they had seen the cancellation of the Constitution Pipeline in New York and the Keystone XL pipeline across the central part of the U.S. In 2021 they also saw the cancellation of the Penn East pipeline in Pennsylvania and New Jersey as well as the Pacific Connector Pipeline and Jordan Cove LNG project in Oregon. They also witnessed mass resistance to the Dakota Access Pipeline at Standing Rock. Panic must have set in for the corporations that make up the American Petroleum Institute.
The MVP is a climate time bomb. It is literally a public safety hazard and an enormously corrupt and democracy-ending project.
Imagine that. People, just regular people, were challenging the industry’s grip on the U.S. government—and winning. This was a direct assault to their year-in-and-year-out massive profits. The people were fighting for their property rights, for their water, for Indigenous rights, and for the environment. In West Virginia and Virginia, a rag-tag group of citizens formed the POWHR (Protect OUR Water Heritage & Rights) Coalition to fight the MVP. At first, that coalition was largely ignored by most everyone. But we just did not give up. Eventually, people across the nation started to listen and join with our coalition to fight the MVP. This growing coalition and its allies proved to be too powerful for the developers of the MVP, so they pulled out their pocketbooks and started donating massive amounts of money to some key U.S. senators, namely Democrats Chuck “NextEra” Schumer of New York and Joe “Dirty Deal” Manchin of West Virginia.
In late 2022, these two powerful senators reached a deal with President Joe Biden to include a legislative mandate to rescue the MVP as part of Manchin’s support of the not-such-a-great climate bill called the Inflation Reduction Act. The people said not so fast. We rallied against this so-called “Dirty Deal” and killed it multiple times in late 2022. Then came the debt ceiling crisis in early 2023. Manchin and fellow Republican senator from West Virginia, Shelly “For Sale” Moore Capito, convinced the debt ceiling negotiators to include Section 324 in the Fiscal Responsibility Act (FRA). Section 324 would strip citizens’ rights to object to permits and deem the pipeline to be “in the national interest.” It was opposed by many senators and House progressives but the corruption in government proved too much for them to overcome.
You might think that the people had lost. They had more to say. On June 8, under smoke-filled skies, dozens of MVP-affected citizens and their allies from across the nation rallied at the White House. Their message: We demand that the administration declare a climate emergency and cancel the MVP and other recently approved fossil fuel projects like the Willow project in Alaska and the expansions of LNG projects in Texas and Louisiana’s Gulf Coast. The opponents of the MVP also continued their challenges to the pipeline, which already has a track record of hundreds of violations. Our coalition also continued to challenge not only the constitutionality of Section 324 of the FRA, but also the eminent domain provisions of the Natural Gas Act.
Unfortunately on Friday, the 4th Circuit Court of Appeals concluded they had only one recourse and dismissed the MVP opponents’ challenges to the already pending permit challenges. But they did not do it quietly. On Friday, I shared this press statement referencing Judge Roger L. Gregory’s concern about Section 324 of the FRA:
Today is a very sad day, the very day after Hawaii saw the worst disaster in its history, where dozens, if not hundreds of people perished in a massive climate change-driven wildfire, that the 4th Circuit Court felt they had no other choice but to dismiss lawsuits designed to protect our environment. Judge Gregory was correct when he stated,
…Section 324 is a blueprint for construction of a natural gas pipeline by legislative fiat. If that provision is likewise constitutionally sanctioned, the Congress will have found a 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.
I share Judge Gregory’s real concern for our environment and our democracy.
Where does this leave us? The MVP is a climate time bomb. It is literally a public safety hazard and an enormously corrupt and democracy-ending project. If it is allowed to be built under these circumstances the entire nation will suffer from the precedent-setting way it was legislated to competition by “legislative fiat.” Exempting any single project of any kind from long-held environmental rules is a slippery slope down the road toward oligarchy. That is why partisan politics must be set aside and the courts and Congress must put a halt to such practices. They must act quickly because our survival depends upon it. Just ask the people on Maui.
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Groups 'Extremely Disappointed' by Ruling But Vow to Keep Fighting Mountain Valley Pipeline
"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 one activist.
Aug 11, 2023
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."
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