Supreme Court clears the way for pipeline construction favored by Manchin – The Washington Post

But much of the pipeline is already built. During the tense negotiations earlier this summer to keep the nation from defaulting on its debts, House Republicans and Democratic Sen. Joe Manchin III of West Virginia wrangled a deal with the Biden administration to cut the courts out of the process.

How a pipeline helped grease the debt ceiling deal

The bill at issue acted in three ways. It ratified and approved “all federal authorizations” for the project. It expressly stripped courts of jurisdiction to review “any action” by a federal agency granting authorization for the construction and operation of the pipeline. And it said that any claim about the constitutionality of the law could be heard only by the U.S. Court of Appeals for the D.C. Circuit.

Nonetheless, a 4th Circuit panel on July 10 issued a stay on part of the pipeline that remains to be built, which runs through the Jefferson National Forest in Southwest Virginia. The panel of judges did not provide their reasoning, but environmentalists had argued that the action by Congress improperly cut out the judiciary and violated separation of powers.

“Congress enacted a statutory provision that crosses the line between legislating and judging,” the Wilderness Society said in its filing at the Supreme Court. “Congress cannot pick winners and losers in pending litigation by compelling findings or results without supplying new substantive law for the courts to apply.”

Another group of environmentalists in a separate challenge said that in a case “involving endangered species that are indisputably harmed by pipeline construction,” the lower court’s action “appropriately maintains the status quo.” The lower court scheduled an expedited hearing for Thursday.

That hearing was underway when the Supreme Court sided with the builders of the pipeline, backed by the Biden administration. They had told the high court that Congress was well within its authority to “establish standards for environmental permitting and to prescribe the jurisdiction of the lower courts.” They said the Supreme Court has repeatedly upheld legislation that applies new legal standards that “apply retroactively to pending lawsuits, even when it effectively ensures that one side wins.”

“Time is of the essence,” Donald B. Verrilli Jr., a former Obama administration solicitor general who now represents the pipeline builders, wrote in his emergency application to the Supreme Court. “Congress has made clear that there is a paramount national interest in expeditious completion of the pipeline.”

The $6 billion pipeline is a joint venture between some of the largest gas companies in Appalachia and the power company NextEra Energy. Its largest investor is Equitrans Midstream, which has a 48.1 percent ownership interest and will operate the pipeline.

The pipeline is a priority of West Virginia’s political establishment, which has been critical of 4th Circuit judges who have agreed with environmentalists that more review of the project is required.

But the congressional action was roundly denounced by Virginia’s two Democratic senators, Mark R. Warner and Tim Kaine, and members of that state’s congressional delegation.

The consolidated cases are Mountain Valley Pipeline v. The Wilderness Society.

Rachel Weiner and Ann Marimow contributed to this report