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Manchin economic package talks included transferring Mountain Valley Pipeline cases to another court

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This week’s agreement that won the support of Sen. Joe Manchin III (DW.Va.) for major economic legislation contained a small provision that could have outsized impact in federal courts.

In an early version of the talks, Democratic leaders agreed to a proposal that would see future litigation involving a particular proposed pipeline in Manchin state be heard by the United States Court of Appeals. for the DC Circuit and that the judges assigned to the cases would be randomly assigned. Experts say the ramifications of such a deal would go beyond the controversial Mountain Valley Pipeline project that has long been blocked by the courts on environmental grounds.

“It would create a new avenue for lobbyists” to demand “congressional forum-shopping” for pet concerns, said Michael Gerrard, a professor of environmental law at Columbia University, on the grounds that “”Joe Manchin did it for them; why can’t you do it for me?

It is unclear what language will be used in a final agreement. A longer bill that has been circulating among environmental and energy lobbyists, first published by Bloomberg, says only that federal courts will “randomly assign cases seeking judicial review of any federal authorization. of a covered project to the extent possible to avoid the appearance of favoritism or bias”.

The word “practicable” leaves a great deal of leeway for the courts to assign cases as they see fit.

The idea of ​​legislation that only affects the Mountain Valley Pipeline is cringeworthy, but anything written broad enough to include other projects could draw resistance from satisfied companies in their local appeals courts. Those involved in the negotiations said the draft is constantly changing and won’t be final until a vote in late September; a spokeswoman for Manchin called the draft “outdated and incomplete.”

As its name suggests, the pipeline first proposed in 2014 goes high and low on its 303-mile journey through West Virginia and Virginia. Since its inception, environmentalists have fought the plan as polluting waterways and damaging rock; landowners protested the use of eminent domain to seize their property. After numerous legal battles, including one that ended with a consent decree over violations of Virginia law, the pipeline is now years behind schedule and billions of dollars over budget.

A company spokeswoman did not return a request for comment, but told the Virginia Mercury that “MVP is recognized as a critical infrastructure project that is essential for energy security, energy reliability and the ability to our country to effectively transition to a low-carbon economy. coming.”

Federal courts make their own rules regarding the assignment of judges to cases. In the Fourth Circuit, as in most federal courts, cases are initially assigned at random, but related litigation is often assigned to judges who have become familiar with the facts and legal issues involved.

The same three-judge panel has heard most of the Fourth Circuit cases involving the Mountain Valley Pipeline – Chief Justice Roger L. Gregory, who was suspended by President Clinton prior to his nomination by George W. Bush, and Justices Stephanie D. Thacker and James A. Wynn Jr., both Obama appointees. The Fourth Circuit ruled that federal agencies failed to consider erosion, construction runoff, or impact on endangered fish species when approving permits and that the company would not complete the water crossing works quickly enough.

It’s not clear that the DC Circuit would rule differently if new permits were issued and challenged, but the company behind Mountain Valley Pipeline has made it clear that it blames those particular judges for its misfortunes. Their lawyers recently took the unusual step of requiring a new panel of judges, saying repeated adverse rulings from the same panel have created “the perception of a stacked deck against major infrastructure projects in general and a private party in particular” .

Noting that the same judges had ruled in favor of the pipeline on other issues, opponents of the project responded in a filing that “MVP’s record of license challenges reflects systemic flaws in MVP’s pipeline licensing.” , rather than a “deck stacked against” it.”

The court denied the request for a new panel, and the entire Fourth Circuit refused to reconsider the panel’s judgments.

The majority of active justices on the DC circuit are Democratic candidates, though the inclusion of senior justices who also hear cases makes the court equally divided. On the Fourth Circuit, Democratic candidates are in the majority on the active and senior bench.

Joe Lovett, executive director of Appalachian Mountain Advocates, one of the groups challenging the pipeline in court, called the potential deal to shift all future litigation to the DC circuit “crazy.”

“It would challenge the legitimacy of our federal courts, even as that legitimacy is challenged on issues such as abortion and voting rights,” he said. “To preserve the integrity of the courts, I hope this effort fails.”

There are other provisions in the circulated draft that could help Mountain Valley Pipeline “as well as hundreds of other renewable energy, transmission and highway projects facing the same permit approval delays due to requirements confusing overlapping,” said Alex Herrgott, president of the nonprofit. Permitting Institute and an infrastructure official under President Donald Trump. But the words “Mountain Valley Pipeline” do not appear.

Sam Sankar of Earthjustice, a law firm that works on environmental advocacy, said asking new judges directly to review the Mountain Valley litigation would be considered “an inappropriate and potentially unlawful interference in a case. In progress”. So the project “could be a clue or be taken or taken as a clue to this panel or the Fourth Circuit more broadly to reallocate these cases. It doesn’t seem to me that it probably has much direct effect. These judges will make their own decisions.

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