On July 27, 2023, the U.S. Supreme Court vacated the U.S. Court of Appeals for the Fourth Circuit’s decision to grant the Wilderness Society’s motions to stay of construction on the Mountain Valley Pipeline (“MVP”) pending that court’s review of the Forest Service’s amended Forest Management Plan. The Supreme Court’s order grants MVP’s emergency application to vacate the Fourth Circuit’s stay orders and permits MVP to resume construction on the pipeline.

MVP is a proposed 303-mile natural gas pipeline which runs through the Jefferson National Forest in West Virginia and Virginia.  The pipeline is substantially complete, but construction has been stalled pending challenges related to two remaining approvals from the Forest Service and the Bureau of Land Management (“BLM”) authorizing construction in the Jefferson National Forest.  On May 15, 2023, the Forest Service amended its Forest Management Plan to allow for buried pipeline through the Jefferson National Forest and several days later BLM granted MVP a right-of-way across the Jefferson National Forest and a permit for construction.  These authorizations allowed MVP to construct a 3.5-mile segment of the pipeline through the Jefferson National Forest.  After the authorizations were issued, the Wilderness Society petitioned the Fourth Circuit for review of the Forest Service’s Forest Management Plan and BLM’s permit, arguing that those administrative actions violate the National Environmental Policy Act, National Forest Management Act, Mineral Leasing Act, and Administrative Procedure Act.

On July 10, 2023, the Fourth Circuit issued a one-sentence order halting all construction in the Jefferson National Forest without explanation.  The stay requests came shortly after President Biden signed into law the Fiscal Responsibility Act of 2023 (“Act”), which, in addition to raising the debt ceiling, contained a provision to aid the completion of MVP.  Specifically, the Act provides that “all authorization necessary for the construction and initial operation of MVP” shall be approved and “no court [other than the D.C. Circuit] shall have jurisdiction to review any action taken by” an agency that is “necessary” for “construction or initial operation at full capacity of the [MVP].” (See The Fiscal Responsibility Act of 2023 (H.R. 3746), Section 324(c)(1), (e)(1)-(2)).  In response to the Act, MVP and the Forest Service/BLM filed motions to dismiss the petitions for review for lack of jurisdiction.

In the Wilderness Society’s stay requests, it argued that the Act has no effect on the petitions for review because it is unconstitutional in that it violates Article III and the separation of powers. The Wilderness Society argued that a stay was necessary because FERC had recently granted MVP approval to restart construction and the only remaining impediment to construction in the Jefferson National Forest was to receive notice to proceed from BLM, which they argued was imminent. MVP opposed the stay requests, arguing that the Fourth Circuit “lacks jurisdiction to take any action in this case at all, much less impose the extraordinary relief petitioner now seeks.”  In addition, the Biden Administration issued a statement opposing the stay requests similarly arguing that the Fourth Circuit lacks jurisdiction and that even if it did have jurisdiction, the Wilderness Society is not entitled to such extraordinary relief.

In response to the Fourth Circuit’s stay orders, on Friday, July 14, 2023, MVP filed an emergency application with the U.S. Supreme Court requesting that it vacate the stay orders.  MVP maintained that the Act validly stripped the Fourth Circuit of jurisdiction over the petitions for review, such that the court lacked authority to enter the stay orders. On July 27, 2023, the U.S. Supreme Court vacated the Fourth Circuit’s orders, thereby lifting the stay on the pipeline’s construction. The Supreme Court’s decision will allow MVP to resume and complete construction. In its opinion, the Court did not address the arguments made by MVP or others who filed amicus briefs.

The U.S. Supreme Court opinion can be found here.

The Fourth Circuit opinion can be found here.