Judges Defy Congress to Stop the Mountain Valley Pipeline

Three judges on the Fourth Circuit Court of Appeals are doing the legal equivalent of lying down in front of tractors to block the Mountain Valley Pipeline. For the umpteenth time, a three-judge panel on Monday halted pipeline construction even though Congress and President Biden have stripped the court of jurisdiction.

The 304-mile pipeline to deliver natural gas from Appalachia to the Southeast is 94% complete. But the final parts have been stuck in permitting purgatory as the same three Fourth Circuit judges—Stephanie Thacker, James Wynn and Roger Gregory—nit-pick environmental reviews and order regulators to redo them.

A Republican intercession in the debt-ceiling legislation promised to liberate the pipeline from limbo by requiring the U.S. Army Corps of Engineers to issue all necessary permits. The law also exempted government approvals from judicial review and gave the D.C. Circuit Court of Appeals exclusive jurisdiction to hear legal challenges to Congress’s rubber-stamp.

The Wilderness Society nonetheless challenged a federal permit for a three-mile pipeline segment through the Jefferson National Forest. The outfit argues that Congress overstepped its authority by stripping the Fourth Circuit of jurisdiction to hear challenges and “compelling findings or results without supplying new substantive law.”

But Congress is well within its authority to impose substantive limits on lawsuits that judges can hear under its laws, including the Clean Water Act and National Environmental Policy Act. Congress often limits the scope of judicial review over regulatory actions. The Inflation Reduction Act barred judicial review of challenges to the government’s drug price controls.

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