September 2022, Vol. 249, No. 9

Editor's Notebook

Manchin’s ‘Deal’ Revisited

By Michael Reed, Editor-in-Chief

(P&GJ) — On the surface, Sen. Joe Manchin of West Virginia’s surprise deal with the Democratic leadership of Congress, which would potentially clear the way for the 94% completed Mountain Valley Pipeline to finally be completed, appeared to be a major win for midstream. And, in the final analysis, it may well be. 

However, there are still a few caveats to the agreement that are worthy of a raised eyebrow or two.  

Most significantly, the legislation needed to “streamline the permitting process for all energy infrastructure,” as the senator’s office phrased the development, will still have to be voted on, most likely before Sept. 30, according to P&GJ sources.   

In other words, the agreement still has to go through Congress, which is far from automatic. According to Manchin’s spokespeople, though, it does have the backing of the White House.  

If it is passed, it will certainly be a step in the right direction. However, making the president name 25 “priority” projects on federal lands that must include fossil fuels, does nothing to dissuade activists from mounting legal challenges to these or other proposed projects – nor, in my mind, will the setting of a two-year limit for legal challenges to energy projects. At this point, pipeline opponents have become far too proactive and well-financed to be stalled by mere time limitations.  

There is, at least for the 303-mile (488-km) Mountain Valley Pipeline, one major concession from Democrats in Manchin’s proposal, and it might help his home state pipeline become a reality. If passed, one stipulation would move future legal challenges to the pipeline to the U.S. Court of Appeals for the District of Columbia, rather than the 4th U.S. Circuit Court of Appeals, which has repeatedly struck down permits for the pipeline.  

This leads to the question, “Can Congress actually do that?”   

Well, the consensus seems to be it can. Article 3 of the U.S. Constitution gives Congress the power to establish so-called inferior federal courts, which only have the jurisdiction that Congress affirmatively grants by statute.   

This power extends to regulating federal court jurisdiction and determining the venue for challenges to pipeline and other projects. That’s why, for example, under the Clean Air Act (CAA), the D.C. Circuit hears all petitions for review of CAA actions “of national scope and effect.”  

Still, there are practical matters to consider, according to Ben Salisbury, Height Capital Markets’ director of research and senior policy analyst.  

“It could be theoretically possible for Congress to switch the court or decide the case outright, but is it capable and willing to write the law that is comprehensive and absolute enough to navigate a patchwork of existing laws and precedents in a way that precludes another interpretation by a court?” he asked in response to a P&GJ question.  

Long-time D.C. observer Stephen Barlas, who is P&GJ’s contributing editor on government, took it a step further, wondering how much difference the proposed change in jurisdiction would matter.  

“The more important question is whether the D.C. Appeals Court is the answer to Manchin’s prayers,” Barlas said. “We have reported a number of different instances in the past three or four years, where the D.C. Appeals Court ruled against pipelines.”  

In addition to the Spire and affiliates case, in which the D.C. Appeals Court ruled against an existing pipeline because it said the Federal Energy Regulatory Commission (FERC) didn’t do a thorough enough job of determining a community’s need for it, the court has stalled projects, including the now in-service Sabal Pipeline, based on FERC’s assessment of environmental impact statements.  

“Bottom line,” according to Barlas, “The D.C. Appeals Court is not necessarily a favorable venue for Mountain Valley.”    

Or any other pipeline project, I fear. 

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