Manchin says MVP a 'target' of Fourth Circuit court

May 11—Sen. Joe Manchin, D-W.Va,, blasted the three judges on the U.S. Court of Appeals for the Fourth Circuit in Richmond Wednesday, saying they are "targeting" the Mountain Valley Pipeline by continuing to reject federal agency environmental studies.

Manchin said reviews are completed by agencies like the U.S. Forest Service, Fish and Wildlife, U.S. Army Corps of Engineers and Endangered Species, but the "same three judges" reject many of them, often more than once.

"How did all of these agencies miss everything the court finds?" he said during a virtual press briefing. "They throw them (environmental impact studies) back for another review ... It is intentional from them ... I think that is targeting, direct targeting."

The Fourth Circuit has heard many lawsuits filed by environmental groups related to the pipeline.

These court cases have delayed the Mountain Valley Pipeline (MVP) and a $3.2 billion project is now a more than $6 billion project, Manchin said. The pipeline is more than 90 percent complete and was initially slated to be online by late 2018.

The latest setbacks involving Fourth Circuit decisions impacted a further delay in crossing Peters Mountain in Monroe County into Giles County, Va., a 3.5-mile stretch that crosses national forest land, and another delay in crossing waterways in West Virginia.

The Forest Service's last approval for the Peters Mountain section was vacated by the Fourth Circuit on Jan. 25, 2022, saying it did not meet federal standards.

An updated Final Supplemental Environmental Impact Study (FSEIS) was recently submitted by the Forest Service and is awaiting the court's approval.

The Fourth Circuit also recently said the MVP crossing of waterways in West Virginia could not continue because the state Department of Environmental Protection (DEP) had not taken into consideration if pipeline builders would meet all state stormwater and water quality requirements before issuing an approval.

The state "failed to provide a reasoned explanation as to why it believes MVP's past permit violations will not continue to occur going forward," the Fourth Circuit judges wrote.

Manchin's federal permit reform bill, called the Building American Energy Security Act of 2023, aims to streamline the litigation process.

"My bill targets how we accelerate this process through the court system," he said, describing the current process as "double jeopardy" because "they are sending you back to court every time you do something."

"What we are trying to do is have the lead agency ... take the Mountain Valley Pipeline and that would be FERC (Federal Energy Regulatory Commission), and FERC would take the lead on that," he said, with other agencies granting permits and doing their work on a project at the same time rather than one at a time.

"That streamlines it down," he said, and if the Fourth Circuit sends it back and says things were missed, then the lead agency, like FERC, would accelerate it to get it completed and back for review by the court again.

But it would go back to a different court.

"The court systems cannot put the same judges on it every time, which is what they have been doing," he said. "Then you get the same opinion no matter what you do. You can't satisfy them. We are going to stop that and eliminate that from happening in any way, shape or form. It just doesn't make any sense at all."

"We are not eliminating the (judicial) process. We are putting some common sense into it and accelerating it."

Energy security is a top priority, he added.

"We are at the point now that if we want energy security for our country and have basically reliable energy we need for every citizen, we need a reliable energy grid system that works, and to help our allies, then we have to put product on the market," he said. "The MVP is going to get done."

Manchin said the MVP is advancing through the agencies and "we just got total support from the Department of Energy ... with (Secretary) Jennifer Granholm's letter telling FERC why this is needed from the standpoint of security."

"It (MVP) will be in this piece of legislation if it is not done before," he said. "We are committed, and the MVP is going to be built. It must be for the security of our nation."

Judicial reform is just one part of Manchin's bill, which he first introduced last fall as part of the National Defense Authorization Act.

"It is the only comprehensive and bipartisan bill that was passed onto the Senate floor," he said Wednesday, with 40 Democrats and seven Republicans supporting it.

"We have much more that needs to be done that gets more Republicans or more Democrats," he said, because it needs 60 votes to pass. "Any combination of 60 votes will work. That is what we are working towards now."

Sen. Shelley Moore Capito, R-W.Va., and Sen. John Barrasso, R-Wyo., have also introduced federal permitting reform bills, and all are now going through hearings in their respective committees.

Manchin, who is Chairman of the Senate Energy and Natural Resources Committee, has slated a hearing for today, which includes representatives from the American Clean Power Association, the National Mining Association, the American Federation of Labor, and Jonah Energy.

The hearing will "examine opportunities to reform the permitting process for energy and mineral projects."

Manchin said these committees will hold more hearings and then try to come up with an agreement for one bill that is supported by enough Republicans and Democrats to get it passed.

Permitting reform could also possibly be part of the House debt limit bill which is now being negotiated between Congressional leaders and the President.

"I will take it anywhere I can get it," he said of the reform in that House bill. "We are looking at his bill also. If they are going to move that bill with the permitting in it we will be ready to go. But if it doesn't we have bills introduced."

Manchin said he knows some changes will be needed to come up with a compromise bill from the committees.

"We are going to look at all of those," he said. "It is a process, then we have to put them together."

But this should be the year federal permitting reform gets done, he added.

"This is going to get done," he said. "If it doesn't get done this year, shame on all of us. I have never seen a piece of legislation that was needed more than permitting reform, and I have never seen all sides of the equation understanding they need some form of permitting reform. Whether you are hardcore fossil energy only or you are hardcore renewables only, or you are an all-in energy policy person like myself, you can't do anything that you want done unless we can build them (energy projects) quicker than seven, eight, nine or ten years."

Manchin said other countries do not have such a long permitting process, including countries like Canada and Australia, which are "very environmentally conscious countries that get things done in a one to three-year timeline. There is no reason why we can't."

Manchin also said Wednesday he opposing every nominee the Biden administration is supporting to head the Environmental Protection Agency (EPA).

The purpose of his opposition is to bring attention to how crucial coal and gas are to energy security.

"Why can't this administration understand that no means no," he said of members of both parties telling the administration the nation's power grid cannot do without coal and gas . "You have got to have reliable (energy sources). Coal is dispatchable. It runs 24/7. I am for everything (all energy sources). I'm just not for taking off what I've got to have because you want something that you want to have that doesn't do the job."

Coal and gas provide the backup, the horse power to run the country, he said, and they are 60 to 70 percent of the nation's energy load.

"Depleting them and taking them offline before we have something to replace them is pure craziness," he said. "We will do everything we can to make sure they (the Biden administration) will not jeopardize the grid system, the reliability, the power this country needs."

These comments followed a statement he released Wednesday about his stance on an EPA nominee.

"This Administration is determined to advance its radical climate agenda and has made it clear they are hellbent on doing everything in their power to regulate coal and gas-fueled power plants out of existence, no matter the cost to energy security and reliability," he said. "Just last week, before the Senate Energy and Natural Resources Committee, every FERC Commissioner agreed that we cannot eliminate coal today or in the near future if we want to have a reliable electric grid. If the reports are true, the pending EPA proposal would impact nearly all fossil-fueled power plants in the United States, which generate about 60 percent of our electricity, without an adequate plan to replace the lost baseload generation. This piles on top of a broader regulatory agenda being rolled out designed to kill the fossil industry by a thousand cuts."

Manchin said he fears that "this Administration's commitment to their extreme ideology overshadows their responsibility to ensure long-lasting energy and economic security and I will oppose all EPA nominees until they halt their government overreach."

— Contact Charles Boothe at cboothe@bdtonline.com

Contact Charles Boothe at cboothe@bdtonline.com