A federal court ordered a temporary halt to construction of the Mountain Valley Pipeline on Tuesday in a setback for Joe Manchin and a win for environmental activists. That could be bad news for the climate.
For years now, the West Virginia Democrat and the green left have been sparring over the 303-mile pipeline, which aims to transport natural gas from Appalachia to the Southeast. The pipeline is 94 percent constructed, but climate activists and Virginia conservationists have managed to hold up its completion for years through legal challenges.
Manchin believes the pipeline will create jobs and economic growth for his home state. To secure the senator’s support for the passage of hundreds of billions of dollars in green-energy subsidies, the Biden administration promised to help clear the pipeline’s path through the judiciary. The White House initially hoped to do so as part of a package of permitting reforms that would remove obstacles to the development of clean-energy infrastructure. But progressives withheld their support from the measure (and if they had backed it, it’s far from clear that enough Senate Republicans would have signed on to overcome a filibuster).
Instead, the White House made good on its pledge during the debt-ceiling fight. As part of its agreement with Republicans to raise the nation’s borrowing limit, Congress ordered the U.S. Army Corps of Engineers to provide the Mountain Valley Pipeline with all necessary permits, exempted government approvals of those permits from judicial review, and gave the D.C. Circuit Court of Appeals sole jurisdiction over constitutional challenges to these provisions.
But the Wilderness Society persisted with a legal challenge to the federal permit for a pipeline segment traversing the Jefferson National Forest, arguing that Congress had abused its authority when it stripped the Fourth Circuit Court of Appeals of jurisdiction over challenges to the project. That court chose not to summarily dismiss the environmentalists’ case on Tuesday, instead ordering a temporary halt to pipeline construction while it reviews all relevant legal briefs.
In the immediate term, this decision is a victory for environmentalists who wish to reduce carbon emissions by blocking fossil-fuel infrastructure. In the long run, however, establishing the principle that Congress cannot strip courts of jurisdiction over challenges to federal policy in general, and to energy-infrastructure permitting in particular, would be contrary to the climate left’s best interests.
Any legal precedent that makes it more difficult for the legislative branch to expedite infrastructure projects will do more to undermine the green transition than the carbon economy. Keeping the U.S. dependent on fossil fuels requires building virtually no new infrastructure since the existing energy system is designed around carbon power. By contrast, making the U.S. run on low-carbon energy — in time to meet the nation’s decarbonization goals — requires the rapid construction of vast constellations of solar panels and wind turbines, transmission lines, geothermal plants, and, possibly, advanced nuclear facilities, among other things.
As the legal scholars J.B. Ruhl and James Salzman recently observed, “As the legal scholars J.B. Ruhl and James Salzman recently observed, “the largest solar facility currently online in the US is capable of generating 585 [megawatts]. To meet even a middle-road renewable energy scenario would require bringing online two new 400 [megawatt] solar power facilities—each taking up at least 2000 acres—on line every week for the next thirty years.”
Replacing the energy basis of industrial modernity requires building enormous quantities of new infrastructure. And such replacement is the only way to reduce carbon emissions; as widespread outrage over rising gas prices last year made clear, the American public is not going to accept declining living standards or energy austerity. The alternative to a rapid green build-out is the maintenance of a fossil-fuel economy.
Furthermore, as energy-policy expert James Coleman notes, while it is possible to ship fossil fuels by rail, the only way to transport wind and solar power at scale is through the construction of linear infrastructure that, like natural-gas pipelines, traverses huge numbers of jurisdictions and ecosystems and is, therefore, exceptionally vulnerable to legal challenges.
Thus, a legal and regulatory regime that favors stasis is necessarily one that favors fossil fuels. And this is not merely speculative: As of 2021, more than twice as many green projects as fossil-fuel projects were held up by the National Environmental Policy Act reviews under federal jurisdiction.
Separately, as a more general matter, it would be unwise for progressives to transfer policymaking power away from the legislative branch and toward the courts when conservatives dominate the judicial branch’s commanding heights. Indeed, Democrats have already been using Congress’s powers of jurisdiction stripping to protect progressive reforms from reactionary judges. The Inflation Reduction Act, for example, specified that its provisions capping various drug prices for Medicare beneficiaries are not subject to judicial review.
For the moment, it’s unclear how significant the Fourth Circuit’s decision actually is. It’s possible the court merely intends to review the relevant briefs, confirm the legitimacy of Congress’s order, and then get out of the pipeline’s way. But if it decides to challenge congressional authority over permitting and block the project, climate hawks should not celebrate. The completion of a single natural-gas pipeline will have a negligible impact on carbon emissions. A legal regime that prevents Congress from removing obstacles to energy infrastructure, by contrast, will make it impossible for the U.S. to meet its decarbonization goals.
