Last month, the Supreme Court vacated a stay entered by the U.S. Court of Appeals for the Fourth Circuit preventing further construction on the controversial Mountain Valley Pipeline (MVP) pending a hearing on last ditch legal efforts to prevent the pipeline's completion. As I noted at the time, the Supreme Court's intervention here was somewhat unusual, but almost certainly prompted by the Fourth Circuit's own unusual (and unwarranted) conduct. Congress had enacted provisions in the Fiscal Responsibility Act of 2023 that expressly called for the approval of all remaining permits, ratified all prior federal agency permits, and constrained further judicial review of such permit approvals, leaving little for the Fourth Circuit to do and even less uncertainty about the ultimate outcome of pending litigation.
Yesterday, the U.S. Court of Appeals for the Fourth Circuit granted the motions filed by the MVP's owners and several federal agencies to dismiss pending petitions challenging the project under various environmental laws, though they do not seem too happy about it. Judge Wynn wrote the opinion for the court, joined by Judges Gregory and Thacker, each of whom also wrote a separate concurrence.
The opinions all suggest Congress's intervention presents serious and weighty separation-of-powers questions. I am unconvinced. As I explained in a prior post about this litigation, Congress is doing little more than curtailing the administrative and judicial constraints on agency action that Congress erected in the first place.
