Chief Justice: Mountain Valley Pipeline to move forward. What could that mean for NC?

A federal court of appeals cannot prevent the owners of the Mountain Valley Pipeline from moving ahead with construction, U.S. Supreme Court Chief Justice John Roberts ruled Thursday.

Roberts’ order reverses a stay the U.S. Fourth Circuit Court of Appeals had issued, halting MVP’s progress while it considered a legal challenge from the Wilderness Society. It did not order the Fourth Circuit, which was hearing oral arguments about the stay Thursday morning, to dismiss the case.

The fate of MVP’s main stem is important for North Carolina because it would provide natural gas from Appalachia to southern Virginia that could then be sent along the proposed MVP Southgate extension to Alamance County.

Uncertainty about whether MVP’s 303-mile mainline would ever be completed has twice played a role in the N.C. Department of Environmental Quality’s decision to deny water quality certifications for Southgate.

MVP’s main stem had appeared dormant until earlier this year, when U.S. Sen. Joe Manchin, a West Virginia Democrat, lobbied to have provisions attempting to assure its completion inserted into legislation that lifted the debt ceiling. That provision raised constitutional questions by declaring that all permits or approvals for the pipeline should be granted and exempt from lawsuits, including pending litigation.

While MVP Southgate wasn’t included in the debt ceiling provision, the revived mainline renewed interest in building the extension.

MVP’s owners have asked the Federal Energy Regulatory Commission to give them until mid-2026 to complete the 73-mile Southgate pipeline from southern Virginia into North Carolina. FERC previously ruled that MVP had to finish building Southgate by June 18, 2023.

Impact on NC natural gas

A central factor in FERC’s decision will be whether commissioners believe North Carolina consumers and industries still need the natural gas from the pipeline or whether changing market conditions have rendered it moot.

MVP maintains the first project is 94% complete. The pipeline’s owners say they must clear a 3.5-mile stretch through the Jefferson National Forest, cross streams and complete final restoration work. Opponents have long argued that the stream crossings are likely to be the most complicated and risky parts of building the entire pipeline.

In a brief filed with the court, Duke Energy and Dominion joined with other utilities in the Southeast to argue MVP’s main stem should be allowed to move forward. Gas from the pipeline, they wrote, will provide critical supply in both the short- and long-term.

MVP will provide crucial supplies of natural gas as soon as this coming winter, the utilities wrote. They pointed to the high demand caused last year by the brutal cold in late December, which sent natural gas prices spiraling and caused the first rolling blackouts in Duke Energy’s history in North Carolina.

“If the MVP Project cannot be completed by this winter due to the Fourth Circuit’s stay orders, both (the companies) and the customers they serve will be harmed,” the utilities wrote in a brief submitted to the Supreme Court.

Duke has an agreement with “a third party” that would let it tap into natural gas from MVP, Jennifer Sharpe, a spokeswoman for the utility, told The News & Observer in an email Thursday.

“This agreement provides firm, lower-cost, Appalachian natural gas supply to the Company and its Customers,” Sharpe wrote in an email.

Over the long-term, the utilities said they need gas from MVP to help move away from coal and reduce carbon dioxide emissions.

That argument draws criticism from environmental groups and scientists, who are increasingly worried about how methane emissions impact global warming.

Methane is the main component of natural gas. It is also a potent greenhouse gas, albeit one whose impacts are shorter-lived than carbon dioxide.

Legal questions in MVP case

A coalition of environmental groups including Appalachian Voices and the Sierra Club, among others, told the Supreme Court they had filed a complaint against the U.S Fish and Wildlife Service’s biological opinion that MVP would not threaten any endangered species well before the debt ceiling legislation was passed.

That legislation, the environmental groups argue in a brief, should not apply to pending cases that are already before the Fourth Circuit.

“Faced with the reality that its ill-conceived pipeline cannot comply with this nation’s foundational environmental laws, MVP sought special legislation in which Congress attempted to seize the judicial power by essentially declaring that, in pending litigation challenging authorizations for MVP, the Government and MVP win,” the environmental groups wrote in a brief.

A separate lawsuit that also resulted in the stay challenged the U.S. Forest Service’s decision to allow MVP to cut a 3.5-mile path through the Jefferson National Forest.

MVP, for its part, pointed to the debt ceiling legislation that approved all federal authorizations and “expressly stripped all courts” of judicial review. The D.C. Circuit Court is the only one that can decide whether those provisions are constitutional, per the legislation.

Congress found, MVP’s lawyers wrote, that the project is in the national interest.

“Instead of heeding Congress’s unambiguous command, the Fourth Circuit exceeded the scope of its jurisdiction by entering stays of the very agency orders that Congress deprived the Fourth Circuit of jurisdiction to review,” MVP’s attorneys wrote in their application to vacate the stay.

This story was produced with financial support from 1Earth Fund, in partnership with Journalism Funding Partners, as part of an independent journalism fellowship program. The N&O maintains full editorial control of the work.