The majority of legal challenges to the Mountain Valley Pipeline have been concerned with environmental impact, and brought by organizations that include the Sierra Club, Appalachian Mountain Advocates, and the Wilderness Society. In July, legislation passed by Congress to suspend the debt ceiling included stipulations driven by West Virginia Senator Joe Manchin that effectively mandated the completion of the Mountain Valley Pipeline. One of those stipulations, Section 324, threw out all of the environmental cases from the Fourth Circuit, where environmental organizations had received favorable rulings that blocked or reversed crucial permits.
The constitutionality of Section 324, which Spencer Gall with the Southern Environmental Law Center told me was intentionally written to target the environmental cases against the Mountain Valley Pipeline, has been hotly debated. But because the Bohon case is concerned with FERC’s power, it has a strong argument to survive the debt ceiling bill’s attack on challenges to the Mountain Valley Pipeline. And if the courts apply Section 324 to the Bohon case, Yugo and Collins argue, that would constitute Congress throwing out litigation that challenges its own overreach . (To use Yugo’s words from an August 7 brief: “The Founders are rolling in their graves.”)
Collins added that if the D.C. Court finds that Section 324 in the debt ceiling bill does apply to the Bohon case, making that provision unconstitutional, “the environmental challenges in the Fourth Circuit Court would be back in play. That is the nightmare scenario for the Mountain Valley Pipeline.”