"When you can't win, cheat!": WV environmentalists blast debt limit deal designed to force Mountain Valley Pipeline completion

“When you can’t win, cheat!” West Virginia Environmental Council President Linda Frame said of her takeaway from the deal, called the Fiscal Responsibility Act of 2023. The legislation, which Congress must approve, would compel the U.S. Army Corps of Engineers to issue all permits needed to finish construction of the pipeline within three weeks.

Consistent with past legislative proposals from Manchin, Sen. Shelley Moore Capito, R-W.Va., and Rep. Carol Miller, R-W.Va., the Fiscal Responsibility Act would prohibit legal challenges of any federal or state agency authorization for construction and initial operation of the gas pipeline.

“To be clear, this says the rules that apply to every other company don’t apply to MVP,” West Virginia Rivers Coalition Executive Director Angie Rosser said. “It says our people, our waters, are not worthy of equal protection under the law.”

The prohibition on judicial review of the project would cover all approvals before and after enactment of the proposed legislation.

Struck by President Joe Biden and House of Representatives Speaker Kevin McCarthy, R-Calif., to avoid a default, the deal would give the U.S. Court of Appeals for the District of Columbia Circuit jurisdiction over any claim challenging the legislation fast-tracking approval of the pipeline.

The 42-inch-diameter, $6.6 billion pipeline crossing 11 counties in West Virginia before running into Virginia has long been delayed by legal and regulatory setbacks rooted in environmental issues with the project.

Sunday evening’s release of the product of the deal, the Fiscal Responsibility Act of 2023, came just two days after a federal court ruled the Federal Energy Regulatory Commission had insufficiently explained its decision not to prepare a supplemental environmental impact statement addressing unexpectedly severe erosion and sedimentation along the pipeline’s right-of-way.

“We’ve seen agencies dismiss water quality concerns all along, and yet it’s undeniable — even to the agencies themselves as they’ve levied millions of dollars of fines for MVP’s violations — that our concerns are valid,” West Virginia Rivers Coalition Program Director Autumn Crowe said.

The West Virginia Department of Environmental Protection issued the Mountain Valley Pipeline a key water permit in 2021. But the U.S. 4th Circuit Court of Appeals found the DEP’s justifications for that permit “deficient” last month, noting at least 46 water quality violations, civil penalties totaling roughly $569,000 and 139 oil and gas construction general permit violations over two years prior to the DEP’s certification.

Responding to environmental group challenges, the 4th Circuit also has thrown out since-restored federal Fish and Wildlife Service and Forest Service approvals for the project for not adequately evaluating environmental effects.

The project was first announced in 2014, and its cost amid legal and regulatory delays has ballooned from $3.5 billion to $6.6 billion.

“They just wear them out through litigation,” Manchin said during a news conference Tuesday. “What we’re trying to do is basically accelerate either a yea or a nay.”

The Fiscal Responsibility Act is designed to require a ‘yea.’

A congressional source familiar with the legislation asserted that the deal would eliminate Mountain Valley Pipeline’s need for the West Virginia water quality certification tossed by the 4th Circuit. Federal law can waive the water quality certification since it’s a state authorization created federally, according to the source.

“This bill attempts to block judicial review in precisely the areas of law where permanent approval has been found to be unlawful, arbitrary and capricious,” Russell Chisholm, managing director of Protect Our Water, Heritage, Rights, said in a press call Tuesday. Protect Our Water, Heritage, Rights is a coalition of Virginia and West Virginia groups fighting fossil fuel expansion.

Monroe County landowner Maury Johnson, an outspoken critic of the Mountain Valley Pipeline, said neither Biden nor Manchin should be supported for reelection after the deal.

“[T]hey have thrown the American people, especially the youth, under the bus — or maybe I should say under the pipeline laying tractors ... oil and gas drilling rigs, as well as other climate changing projects,” Johnson said in a statement.

Equitrans Midstream Corp., the pipeline’s lead developer, has estimated that total greenhouse gas emissions from the project would amount to 48 million to 57 million metric tons per year.

“Claims that this project is in any way clean or green are terribly misleading and dangerous,” Quentin Scott, federal director for the advocacy arm of the Chesapeake Climate Action Network, a regional climate nonprofit that has campaigned in West Virginia, said in a statement. “Congress must pass a clean debt ceiling bill and let this zombie project die.”

The Mountain Valley Pipeline would transport up to 2 billion cubic feet per day of gas from the Marcellus and Utica shale formations in West Virginia to markets in the Mid-Atlantic and Southeastern United States.

The project’s capacity is fully subscribed under 20-year contracts, according to Equitrans, which would own roughly 48% of the pipeline and operate it.

The project’s supporters have cited its expected boost to tax revenue in West Virginia and Virginia, and expansion of access to natural gas in the Southeast as reasons to finish the pipeline.

“Affordable and clean energy, good-paying jobs and protecting the communities where we live and work are shared goals that will finally come to fruition once this pipeline is officially placed in service,” Gas and Oil Association of West Virginia Executive Director Charlie Burd said in a statement.

“We’ve got to build it,” Manchin said. “We’ve got to get it done.”

A 2024 candidate for Manchin’s seat in the Senate, Rep. Alex Mooney, R-W.Va., hasn’t decided whether to support the debt limit deal. Mooney is still reviewing the legislation, Mooney spokesman Ryan Kelly said Tuesday.

Rep. Carol Miller, R-W.Va., said she would vote for the Fiscal Responsibility Act on Sunday night, praising its Mountain Valley Pipeline permitting provision.

Sen. Shelley Moore Capito, R-W.Va., called the provision “a significant victory for the future of West Virginia.”

Some members of the House’s right wing have signaled opposition to the deal, arguing that McCarthy should have extracted more concessions from Biden.

Virginia House Democrats submitted an amendment Tuesday that would remove the Mountain Valley Pipeline permitting provision from the Fiscal Responsibility Act.

Treasury Secretary Janet Yellen told Congress it has to address the debt ceiling by June 5 or the nation won’t have enough money to fully pay its obligations on time.

The Institute for Energy Economics and Financial Analysis, an energy policy think tank that aims to accelerate the transition to renewable energy, said the deal undermines U.S. governance.

“A government permit process that affords public scrutiny backed up by the right to judicial review forces decision-makers to think about more prudent alternatives,” the Ohio-based nonprofit think tank said in a statement Tuesday. “It promotes competent government.”

“No matter how anyone might view the wisdom of building a mega-pipeline through our mountainous terrain, removing these basic rights is an insult to all West Virginians,” Rosser said. “We deserve the same protections of our lands and waters as everywhere else in the country.”