The Biden administration and congressional Republicans slipped provisions into the debt deal that expedite construction of a controversial fossil fuel pipeline and attempt to block courts from hearing challenges to its legality, according to the text of the legislation.
The language was inserted into the bill amid a flood of campaign cash from executives at NextEra Energy, one of the companies spearheading the pipeline, to Sen. Kyrsten Sinema (I-AZ) and two other Democratic senators.
The bill not only mandates approval of a major gas pipeline, it also omits proposals to expedite construction of transmission lines that energy grid experts say are necessary to transition the country off fossil fuels.
The pipeline measure is part of the nearly one-hundred-page legislation that President Joe Biden’s White House negotiated with House Speaker Kevin McCarthy (R-CA) to raise the debt ceiling and keep the country from defaulting on its payments. This package — which also includes cuts to the Internal Revenue Service budget, the resumption of student loan payments, and new work requirements for social safety net programs — is serving as a vehicle to push through the pipeline and energy permitting fast-tracking measures championed by Sen. Joe Manchin (D-WV) and Senate majority leader Chuck Schumer (D-NY).
Sinema was reportedly involved in negotiating the debt ceiling bill’s permitting language, which will expedite federal agency reviews of energy infrastructure projects, limiting the window for project opponents to bring legal challenges under keystone environmental laws.
Also included in the bill is a section requiring approval of the three-hundred-mile Mountain Valley Pipeline, which environmental groups say would emit more than twenty-six coal plants’ worth of greenhouse gases amid a worsening climate crisis. Related provisions attempt to block judicial review of federal permits issued for the project, potentially killing off ongoing court cases that could slow or halt it, and transfer any challenges to the legality of the maneuver itself to a more sympathetic federal appeals court.
Since the outset of Biden’s term, progressives have called on the president and Congress to embrace this same tactic — known as jurisdiction stripping — to protect abortion and other civil rights from hostile federal courts. Instead, the White House is using the maneuver to try to help the natural gas industry complete yet another project that locks in new fossil fuel infrastructure, despite scientists’ increasingly dire climate warnings. It could also provide an appealing model for energy companies seeking to escape drawn-out court battles over future projects.
The House voted on the bill Wednesday and passed the deal, with 149 Republicans and 165 Democrats voting in favor.
“The environmental damage this deal does is far greater than just a horrific fossil gas pipeline,” tweeted Democratic senator Jeff Merkley (OR). “It includes a precedent — moving court jurisdiction — that should never see light of day. It would dramatically weaken the environmental review process — putting the fox in the henhouse.”
Republicans are taking note of that precedent. Rep. Garret Graves (R-LA) told reporters Tuesday that the pipeline language is “ultimately a huge win” for his party because it puts “Democrats on record supporting a conventional energy project that removes or ties the hands of the judiciary.”
A Handout for a “Uniquely Risky” Pipeline
First proposed more than nine years ago, the Mountain Valley Pipeline would carry fracked gas from the Marcellus shale fields in West Virginia across some of the steepest slopes in the Appalachian Mountains, covering more than two hundred miles with “high landslide susceptibility.”
In April, the Supreme Court also revived a challenge by Virginia landowners objecting to the pipeline’s expropriation of their land, ruling that their lawsuit could proceed in federal district court.
But the debt ceiling deal provides immediate congressional approval of all remaining permits and authorizations needed for the pipeline project — and could prevent courts from hearing further challenges to them.
The precedent set by the bill is “an invitation for future abuse,” said Peter Anderson, a policy director at Appalachian Voices, one of ten environmental groups involved in one pending federal court challenge.
“This is an egregious attempt by some members of Congress to interfere with pending and future litigation on behalf of private, for-profit companies,” he said. “It’s a handout.”
In the months before the deal was solidified, executives at NextEra, the electric utility giant leading a joint venture behind the pipeline, funneled $150,000 worth of donations to three key Democratic senators: Martin Heinrich (D-NM), Jackie Rosen (D-NV), and Sinema, the latter of whom reportedly “got involved” in the permitting issue, according to the energy and environmental news outlet E&E News.
None of the three senators responded to The Lever’s requests for comment.
Last election cycle, NextEra and its executives delivered more than $360,000 to Schumer and Manchin, who negotiated a similar permitting measure last year and unsuccessfully pushed to include it in a must-pass spending bill. NextEra was Schumer’s second-largest source of campaign cash last election cycle, according to OpenSecrets.
An executive at NextEra sits on the board of American Clean Power, a purported clean energy lobbying group that has backed the permitting effort since it was offered by Manchin and Schumer. NextEra donated $950,000 to the group in 2021.
On Monday, American Clean Power praised the recent debt ceiling agreement as “an important down payment on much-needed reforms to improve the efficiency of the permitting process for clean energy projects, including reasonable timelines for completing environmental reviews.”
“The Republicans Have Stolen Biden’s Lunch Money”
Congress’s attempt to insulate the Mountain Valley Pipeline from judicial review cuts to the heart of debates about separation of powers.
The move isn’t completely unprecedented, according to Patrick Parenteau, an emeritus professor at the Vermont Law and Graduate School. In 2011, two Western legislators used high-stakes federal budget negotiations to remove wolves from Endangered Species Act protections in their states, raising similar alarms from environmentalists.
Even when such maneuvers survive legal challenges, they are “terrible policy,” said Parenteau.
Instead of amending environmental laws through the legislative process, he said, “Congress is simply saying, ‘We don’t care whether this violates the law; we just don’t want the courts stopping it any further.’”
To date, a series of rulings in the Fourth Circuit Court of Appeals in Richmond, Virginia, have found the pipeline approval process in violation of federal environmental laws including the Endangered Species Act and Clean Water Act.
Earlier this month, Manchin complained that the Fourth Circuit was “targeting” the Mountain Valley Pipeline.
Should environmental groups seek to challenge the overall legality of Congress banning judicial review of the pipeline, the bill would also require them to do so in a different court: the US Court of Appeals for the DC Circuit. This venue is “traditionally sympathetic toward [federal] agencies,” said Jean Su, a senior attorney at the Center for Biological Diversity.
While greasing the wheels for new fossil fuel development, the bill omits the permitting reform measures championed by progressives to facilitate approval of transmission lines that connect renewables to the power grid.
“It looks to me like the Republicans have stolen Biden’s lunch money,” said Parenteau.
Earlier this month, Equitrans Midstream Partners, the other major company backing the Mountain Valley Pipeline, had warned investors that it faced a “narrow path” for completing the project by year’s end.
After the debt ceiling deal was announced on May 27, the value of Equitrans stock soared by 35 percent. The company has spent at least $40,000 lobbying on the Mountain Valley Pipeline so far this year.