By John McFerrin

            As part of the deal that resulted in the Inflation Reduction Act, Senator Manchin insisted that permitting of infrastructure projects be fast tracked.  The result was a side agreement that would direct agencies in charge of permitting to speedily review and approve applications for permits.  The summary of the side agreement provided by Senator Manchin’s office included, “Complete the Mountain Valley Pipeline. Require the relevant agencies to take all necessary actions to permit the construction and operation of the Mountain Valley Pipeline and give the DC Circuit jurisdiction over any further litigation.” While the negotiations took place in private, it is widely assumed that at some point Senator Manchin said, “I can support this but I need to finish the Mountain Valley Pipeline.” Or words to that effect.

            On the whole, the Inflation Reduction Act has been praised by environmental groups (the West Virginia Highlands Conservancy has taken no position).  While the Act itself and the side agreement on the Mountain Valley Pipeline may have some questionable or controversial ideas (carbon capture and storage, for example) and some bad ideas (approval of the Mountain Valley Pipeline), it has good ideas on support for clean energy.  If politics is the art of the possible and nobody gets everything they want, most groups have taken the position that, on balance, the Inflation Reduction Act is a good idea.  This has left many who live in the path of the Mountain Valley Pipeline feeling as if they are being sacrificed.  Mountain State Spotlight has done some excellent reporting on this.  https://mountainstatespotlight.org/2022/08/05/joe-manchin-climate-bill-wv-pipeline/?utm_source=Mountain+State+Spotlight&utm_campaign=ed5534ba43-EMAIL_CAMPAIGN_2022_08_05_02_49&utm_medium=email&utm_term=0_91c55fb9d7-ed5534ba43-482945675.

            While the side agreement has not yet been put into an actual law and all the details are not known, the general idea is clear.  A project as big as the Mountain Valley Pipeline will have an impact upon lots of interests, interests which various agencies are charged with protecting.  The Federal Energy Regulatory Commission has to decide if the pipeline will serve the public interest.  It will cross waterways and wetlands so the United States Army Corps of Engineers and the United States Environmental Protection Agency are involved.  It crosses a National Forest so the United States Forest Service has to give permission.  It potentially imperils endangered species so the United States Fish and Wildlife Service is involved.  Although it would not be affected the side agreement, even the West Virginia Department of Environmental Protection has a role.

            The idea behind the side agreement is that, collectively, the agencies are a bunch of pettifogging bureaucrats who are nitpicking a valuable project to death.  They need to get out of the way and let real men do what needs to be done.

            The idea is flawed in two respects.  First, the interests the agencies are protecting are important.  The National Forest is a valuable asset, belonging to all the people.  We can’t let just anybody bulldoze their way through it.  Water is important.  Somebody has to watch out and see that a pipeline company is taking steps to protect it.  If the agencies are picking nits they are extremely important nits that need to be picked.

            The more important flaw in the idea, however, is that the agencies are not the ones who are stopping the pipeline.  When the Federal Energy Regulatory Commission had to decide if the pipeline was necessary, it said yes.  When the Forest Service was asked if the pipeline could cross the National Forest, it said yes.  When asked if the pipeline could cross streams and wetlands, the Army Corps of Engineers said yes.  The agencies may have asked for more information or taken time to study information but, in the end, the answer was yes.

            So far as the West Virginia Department of Environmental Protection is concerned, it has behaved more like a third base coach waving a runner home than a hard-nosed regulator.

            Telling agencies—as the side agreement does—that the answer to requests for permits should always be yes doesn’t change things.  So far as the Mountain Valley Pipeline is concerned, the answer has already been yes.

            The problem (from the MVP’s perspective) or the blessing (from the perspective of the National Forest, the streams, and the endangered species) has been in the courts.  In the case of the Mountain Valley Pipeline, the Courts have often sided against the Mountain Valley Pipeline.  

Even when deciding against the pipeline, the Courts never said, “No, you can’t build it.”  Instead, they pointed out ways in which either the developers or the agencies had been slipshod in their planning or review.  The Courts would direct the developers to correct their mistakes and be more careful in their planning and review.  If the developers and the agencies did the type of planning and review the law called for, the pipeline could go ahead.

The side agreement addresses this problem/blessing by manipulating what judges will review decisions by agencies reviewing the pipeline.

Under current law, most decisions on the MVP would be by the United States Court of Appeals for the Fourth Circuit, the Circuit which includes both Virginia and West Virginia.  

There are fifteen judges who sit on the Court of Appeals.  Only three of these hear each case.  When a case is filed, the Court randomly assigns three judges to hear that case.  While obscure, the assignment process can be important.  Judges are all human beings.  They all have different backgrounds and life experiences that leave them with different biases and points of view.  

The Mountain Valley Pipeline had the bad luck to draw three judges who believed that agencies reviewing permit applications should take their resource protection duties seriously.  The judges also believed that they should take seriously their job of reviewing agency actions.  Had the MVP drawn three judges who would rubber stamp agency decisions, its problems would be over. 

This approach by the judges led them to call out corner cutting, identify sloppiness, note failures to do what the law requires, and overturn agency decisions.

The Court of Appeals also made another obscure, but equally important, decision.  It assigned all MVP cases to the same three judges.  It did this because the MVP is a huge, complicated undertaking.  It is more efficient if the same judges decided all the cases concerning it rather than force different judges to learn about it for each case.

            Faced with this, the MVP’s lawyers asked for a do-over.  Faced with judges who would take review seriously, they asked for a new drawing.  With a new drawing, they had a chance of drawing a couple of rubber stamping judges.  Two rubber stampers could outvote a third stickler; the MVP’s troubles would be over.  The Court refused.  Assigning all the MVP cases to the same judges made sense so they are going to keep doing it.

            Faced with a set of judges who would insist on following the law, the MVP/Senator Manchin did what litigants do when they don’t get the result they want: find a new judge.  The side agreement moves all reviews of agency actions from the Court of Appeals where the project is located to the Court of Appeals in Washington, D.C.  

            The Mountain Valley Pipeline project may be so flawed that no judges would approve it.  Now, at least, its developers have a chance.  It has a chance to draw judges who will rubber stamp the permitting decisions of agencies.  It doesn’t make success a sure thing but it is better than having to get slipshod work past three judges committed to strict application of the law.