Approving a large construction project through Congress, as Democratic Sen. Joe Manchin III of West Virginia is trying to do for Mountain Valley Pipeline in his state, is highly unusual and, according to legal scholars, rests on very thin precedent.
Manchin released legislation on Sept. 21 that would approve the stalled pipeline, a roughly 300-mile project started in 2018, as would a separate bill from Sen. Shelley Moore Capito, R-W.Va.
Manchin’s bill, part of a broader measure to overhaul the federal permitting process for many energy and infrastructure projects, would also curtail legal challenges against the pipeline and direct lawsuits filed about the project to a federal appeals court in Washington, D.C., rather than the Fourth Circuit Court of Appeals in Richmond, Virginia, which has dealt the companies building the pipeline a series of legal setbacks.
While federal lawmakers have intervened in decades prior to greenlight projects — including in a dispute that rose to the Supreme Court over a dam in Tennessee and an endangered fish, and in the 1970s to build an oil pipeline in Alaska — legal experts said the legislative efforts by Manchin and Capito are unusual and depart from how Congress typically operates.
“It’s just really bad public policy to basically break out a single project and say, ‘You’re going to be exempt,’” James Van Nostrand, director of the Center for Energy and Sustainable Development at the West Virginia University College of Law, said in an interview. “That’s just horrible public policy.”
The only similar example of Congress weighing in to approve a particular project Van Nostrand could recall is the case, famous in environmental circles, of the Tellico Dam in Tennessee.
After Congress passed the Endangered Species Act in 1973, an ichthyologist discovered the snail darter – a fish, not the notoriously slow invertebrate – in a river in Tennessee. Two years later, the Interior Department declared the snail darter an endangered species and its home, the Little Tennessee River, a critical habitat. The declaration threatened to thwart the construction of a Tennessee Valley Authority dam Congress funded in 1967.
Faced with evidence erecting the dam could wipe out the fish, the Supreme Court ruled in Tennessee Valley Authority v. Hill, in a 6-3 vote, that building the dam would violate the Endangered Species Act, affirming a lower court ruling.
Yet in 1979, led by Sen. Howard Baker, R-Tenn., Congress passed an unrelated spending bill that exempted the dam construction from the law, though President Jimmy Carter said he regretted the Tellico portion of the bill.