Amicus Curiae Brief — Mountain Valley Pipeline, LLC Applicant v. The Wilderness Society, et al.

Supreme Court briefJul 19, 2023

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No. 23A35

In the Supreme Court of the United States

________________________

MOUNTAIN VALLEY PIPELINE, LLC,

Applicant,

v.

THE WILDERNESS SOCIETY, et al.,

Respondents.

________________________

MOUNTAIN VALLEY PIPELINE, LLC,

Applicant,

v.

APPALACHIAN VOICES, et al.,

Respondents.

________________________

On Emergency Application to Vacate the Stays of the U.S. Court of Appeals for

the Fourth Circuit (Nos. 23-1592, 23-1594, & 23-1384)

________________________

BRIEF OF EQT CORPORATION, THE GAS AND OIL ASSOCIATION OF

WV, INC., MARCELLUS SHALE COALITION, RANGE RESOURCES

CORPORATION, AND PENNSYLVANIA INDEPENDENT OIL & GAS

ASSOCIATION AS AMICI CURIAE IN SUPPORT OF APPLICANT

________________________

TO THE HONORABLE JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE

UNITED STATES AND CIRCUIT JUSTICE FOR THE FOURTH CIRCUIT

________________________

July 19, 2023

RANDALL S. RICH

PIERCE ATWOOD LLP

1875 K STREET, NW, SUITE 700

Washington, DC 20006

(202) 530-6424

rrich@pierceatwood.com

Counsel for Gas and Oil

Association of WV, Inc. and

Pennsylvania Independent Oil &

Gas Association

JOHN C. O’QUINN

Counsel of Record

AARON L. NIELSON

REX W. MANNING

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

john.oquinn@kirkland.com

Counsel for EQT Corporation

ERIN W. MCDOWELL

General Counsel

RANGE RESOURCES

CORPORATION

100 Throckmorton Street

Fort Worth, TX 76102

(724) 544-2302

emcdowell@rangeresources.com

TERRY R. BOSSERT

General Counsel

MARCELLUS SHALE COALITION

300 N. Second Street, Suite 1102

Harrisburg, PA 17101

(717) 603-0714

tbossert@marcelluscoalition.org

Counsel for Marcellus Shale

Coalition

Counsel for Range Resources

Corporation

2

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... iii

STATEMENT OF INTEREST ...................................................................................... 1

INTRODUCTION .......................................................................................................... 3

BACKGROUND ............................................................................................................. 5

A.

Natural Gas Has Important Benefits .................................................... 5

B.

Challenges To Greater Use Of Natural Gas .......................................... 8

C.

The MVP Project, Congress’s Factual Findings, And The Urgent

Need For Completion ............................................................................ 12

ARGUMENT ................................................................................................................ 16

The Public Interest Overwhelming Supports Vacating The Stays. ....................... 17

A.

Congress’s Judgment About What The Public Interest Requires

Should Be The Beginning And End Of The Issue. .............................. 18

B.

The Public Interest Overwhelming Supports The Pipeline’s

Prompt Completion. .............................................................................. 19

CONCLUSION............................................................................................................. 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs.,

141 S. Ct. 2485 (2021) (per curiam) ....................................................................... 18

Dist. 4 Lodge of the Int’l Ass’n of Machinists & Aerospace Workers Loc.

Lodge 207 v. Raimondo,

18 F.4th 38 (1st Cir. 2021) ..................................................................................... 18

League of Women Voters of U.S. v. Newby,

838 F.3d 1 (D.C. Cir. 2016) .................................................................................... 19

Nken v. Holder,

556 U.S. 418 (2009) ................................................................................................ 16

Sierra Club v. Trump,

929 F.3d 670 (9th Cir. 2019) .................................................................................. 18

Tenn. Valley Auth. v. Hill,

437 U.S. 153 (1978) ................................................................................................ 18

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) .................................................................................................... 19

Youngstown Sheet Tube Co. v. Sawyer,

343 U.S. 579 (1952) ................................................................................................ 18

Ziglar v. Abbasi,

582 U.S. 120 (2017) ................................................................................................ 18

Statutes

Fiscal Responsibility Act of 2023,

Pub. L. No. 118-5, 137 Stat. 10 (2023) ................................... 3, 5, 15, 17, 20, 21, 22

Regulations

Natural Gas Explained: Representative Average Unit Costs of Energy,

U.S. Dep't of Energy, 87 Fed. Reg. 12681 (Mar. 7, 2022) ....................................... 7

iii

Other Authorities

2021/2022 Winter Outlook, ISO New England, https://www.isone.com/staticassets/documents/2021/12/20211206_winteroutlook2122_pressconfe

rence.pdf.................................................................................................................. 11

2023/2024 Winter Outlook, ISO New England, https://www.isone.com/static-assets/documents/2023/05/npc-2023-05-04-coo-rpt2023-24-winter-outlook-scenarios.pdf ................................................................... 11

Apr. 21, 2023 J. Granholm Ltr. to FERC,

https://elibrary.ferc.gov/eLibrary/filelist?accession_num=202304244000 ............................................................................................................. 19, 20, 21

Benchmarking Methane and Other GHG Emissions of Oil & Natural

Gas Production in the United States, Clean Air Task Force,

https://www.catf.us/resource/benchmarking-methane-emissions/

(June 1, 2021) ........................................................................................................... 8

Drilling Productivity Report, DUC Well by Region (Appalachian

Basin),

U.S. Energy Info. Admin., July 17, 2023,

https://www.eia.gov/petroleum/drilling/#tabs-summary-3 ..................................... 6

Electric power sector CO2 emissions drop as generation mix shifts from

coal to natural gas, U.S. Energy Info. Admin.,

https://www.eia.gov/todayinenergy/detail.php?id=48296#:~:text=Of

%20the%20819%20million%20metric,the%20increase%20in%20ren

ewable%20generation (June 9, 2021) .................................................................... 13

Environment Baseline, Volume 1: Greenhouse Gas Emissions from the

U.S. Power Sector,

U.S. Dep't of Energy (June 16, 2016)....................................................................... 7

EQT Energy, LLC in Support of Completion of the Mountain Valley

Pipeline and the Requested Extension of Time (July 25, 2022),

https://elibrary.ferc.gov/eLibrary/filelist?accession_num=202207255139 ......................................................................................................................... 12

Feb. 16, 2022 EQT Corp. Ltr. to J. Granholm, https://www.eqt.com/wpcontent/uploads/2022/02/Letter-to-Secretary-Granholm-vF22.16.22-1.pdf ........................................................................................................... 10

iv

Global Energy Review: CO2 Emissions in 2021, Int'l Energy Agency,

(available at https://iea.blob.core.windows.net/assets/c3086240732b-4f6a-89d7db01be018f5e/GlobalEnergyReviewCO2Emissionsin2021.pdf) ........................... 13

The Least U.S. Interstate Natural Gas Pipeline Capacity On Record

Was Added In 2022, U.S. Energy Info. Admin. (Mar. 2, 2023),

https://www.eia.gov/todayinenergy/detail.php?id=55699# ................................... 10

Natural Gas Explained: How Much Natural Gas Is Left, U.S. Energy

Info. Admin., https://www.eia.gov/energyexplained/natural-gas/howmuch-gas-is-left.php ................................................................................................. 6

Natural Gas Explained: Liquefied Natural Gas, U.S. Energy Info.

Admin., https://www.eia.gov/energyexplained/natural-gas/liquefiednatural-gas.php ...................................................................................................... 14

Natural Gas Explained: Natural Gas and the Environment,

U.S. Energy Info. Admin.,

https://www.eia.gov/energyexplained/natural-gas/natural-gas-andthe-environment.php ................................................................................................ 7

Natural Gas Explained: Natural Gas Prices, U.S. Energy Info. Admin.,

https://www.eia.gov/energyexplained/natural-gas/prices.php .......................... 9, 11

Natural Gas Explained: Natural Gas, U.S. Energy Info. Admin.,

https://www.eia.gov/energyexplained/natural-gas/use-of-naturalgas.php ...................................................................................................................... 6

Natural Gas Explained: Where Our Natural Gas Comes From, U.S.

Energy Info. Admin., https://www.eia.gov/energyexplained/naturalgas/where-our-natural-gas-comes-from.php............................................................ 6

No Substitute for Products Made from Natural Gas & Oil: Saving Lives

& Enhancing Safety During COVID, PIOGA,

https://pioga.org/publication_file/Just_The_Facts_Products_From_G

as_Oil.pdf .................................................................................................................. 5

U.S. Energy-Related Carbon Dioxide Emissions, 2019,

U.S. Energy Info. Admin.,

https://www.eia.gov/environment/emissions/carbon/archive/2019/pdf

/2019_co2analysis.pdf ............................................................................................... 8

Unleashing U.S. LNG, EQT Corp.,

https://www.eqt.com/wp-content/uploads/2022/03/LNG_Final.pdf ....................... 8

v

World Energy Outlook 2021, Int'l Energy Agency,

(available at https://iea.blob.core.windows.net/assets/4ed140c1c3f3-4fd9-acae-789a4e14a23c/WorldEnergyOutlook2021.pdf) ............................... 8

vi

STATEMENT OF INTEREST1

EQT Corporation (“EQT Corp.”) is the largest producer of natural gas in the

United States. As a foundation shipper on the Mountain Valley Pipeline Project (“the

Pipeline”), EQT Energy, LLC (“EQT”) has subscribed to 1,165,000 dekatherms per

day of firm transportation capacity on the Pipeline. The Pipeline is an important part

of EQT’s long-term goals regarding responsible energy development, and EQT is

counting on that contracted capacity to meet the growing need for natural gas.

Gas and Oil Association of WV, Inc. (“GO-WV”) is an association of oil and gasrelated companies doing business in the State of West Virginia. GO-WV’s members

are engaged in the exploration, production, gathering, distribution, transportation,

and sale of natural gas. Many of GO-WV’s members utilize the facilities of Equitrans,

L.P. (“Equitrans”) to ship natural gas. Equitrans is located upstream of the Pipeline,

and many of GO-WV’s members have precedent agreements to become firm shippers

or are potential shippers of natural gas on the Pipeline.

The Marcellus Shale Coalition (“MSC”) represents natural gas producers,

midstream and pipeline companies, and local supply-chain companies that promote

the safe and responsible development of natural gas from the Marcellus and Utica

geological formations located in the Commonwealth of Pennsylvania. Pennsylvania

accounts for 20% of the nation’s natural gas production, and interstate pipelines are

essential for MSC members in order to get their gas to market. MSC members intend

1 No part of this brief was authored by any party’s counsel, and no person or

entity other than amici curiae funded its preparation or submission.

1

to use the Pipeline to supply gas to underserved parts of the country. The U.S. Energy

Information Administration estimates that over 100 trillion cubic feet of proven gas

reserves exist in Pennsylvania. Stranding these valuable natural resources due to

the lack of an interstate pipeline leading to important demand regions would be

tremendously wasteful and detrimental to MSC members’ operations.

Range Resources Corporation (“Range”) is one of the largest producers of

natural gas in the United States, with all its unconventional natural gas produced in

Pennsylvania. Range has produced energy in Appalachia for more than twenty-five

years, and it was the first exploration company to commercially drill in and develop

the Marcellus Shale, which has become one of the most prolific natural gas reservoirs

in the world. Pipeline infrastructure, including that to be offered by MVP, is critical

to natural gas development in Appalachia, including to Range as a producer of

natural gas, those involved in the natural gas industry, and consumers of natural gas

who rely on this clean energy source for electric power generation and as a feedstock

for products needed in everyday life.

Pennsylvania Independent Oil & Gas Association (“PIOGA”) is an association

of independent producers and other oil and gas-related companies doing business in

the Commonwealth of Pennsylvania.

PIOGA’s members are engaged in the

exploration, production, marketing, and sale of natural gas.

Many of PIOGA’s

producer members utilize the facilities of Equitrans to ship natural gas. Equitrans is

located upstream of the Pipeline, and PIOGA members are potential shippers on

MVP.

2

Based on their extensive experience in the natural gas industry, Amici

respectfully submit this brief to explain why the public interest overwhelming

supports granting Applicant Mountain Valley Pipeline, LLC’s (“MVP”) Emergency

Application to Vacate the Stays of Agency Authorizations Pending Adjudication of

the Petitions for Review (“the Emergency Application”). Indeed, absent emergency

relief from this Court, the public will be significantly and irreparably harmed. Amici

therefore urge the Court to promptly grant the Emergency Application.

INTRODUCTION

In the Fiscal Responsibility Act of 2023, Congress “f[ound] and declare[d] that

the timely completion of construction and operation of the Mountain Valley Pipeline

is required in the national interest.” Fiscal Responsibility Act of 2023, Pub. L. No.

118-5, §324(b), 137 Stat. 10, 47-48 (2023) (the “Act”). Congress further found that the

Pipeline will “serve demonstrated natural gas demand in the Northeast, MidAtlantic, and Southeast regions” while “increas[ing] the reliability of natural gas

supplies and the availability of natural gas at reasonable prices”; will “allow natural

gas producers to access additional markets for their product”; and will “reduce carbon

emissions and facilitate the energy transition” away from less-efficient, more

environmentally harmful energy sources. Id.

Despite these explicit Congressional findings—any one of which is sufficient to

demonstrate that the public interest favors the Pipeline’s immediate completion—the

U.S. Court of Appeals for the Fourth Circuit has indefinitely stayed the federal

authorizations that would allow MVP to finish the Pipeline’s remaining few miles of

construction, thus slamming the breaks on the entire project. The Fourth Circuit did

3

not explain how further delay of this important infrastructure project could serve the

public interest.

Indeed, the Fourth Circuit offered no explanation at all for its

decision, much less its exercise of jurisdiction. Unless this Court promptly vacates

the Fourth Circuit’s stays, the Pipeline will not be completed this year, will not

transport natural gas to end users and consumers, and will not provide fuel to heat

American homes this winter—flatly contrary to Congress’s determination that the

“national interest” requires the Pipeline’s “timely completion.”

The Emergency Application correctly explains why the Fourth Circuit’s stays

run contrary to law, thwart the express will of Congress, risk irreparable injury to

MVP (and others), do not provide any valid benefits to the Pipeline’s opponents, and

harm the public interest. Here, Amici submit this brief to further demonstrate why

the public interest supports vacatur.

As Congress recognized, the Pipeline will

directly benefit the public, including enabling millions of U.S. consumers to access

affordable and reliable energy, expanding access for natural gas producers, and

reducing regional emissions versus the status quo.

Even absent deference to

Congress’s judgement about where the public interest lies, vacatur would be

warranted. As Amici can aver, the disruption to industry and the consequences for

the public are palpable absent timely completion of this long-delayed project. Given

that Congress, however, considered these precise issues and explicitly found that the

public interest supports the Pipeline, the Fourth Circuit’s decision is even more

indefensible and vacatur is required.

4

BACKGROUND

For more than six years, MVP has endeavored to complete the Pipeline and

connect natural gas supplies in the Appalachian Basin to broader regions of

demonstrated demand. Doing so has required MVP to obtain regulatory approvals

regarding essentially all aspects of the project, spend billions of dollars, invest

countless hours, and defend the project against torrents of litigation. All this effort

is worth it because the Pipeline is an essential piece of American infrastructure that

will provide significant benefits to the public.

In recognition of the project’s

importance, Congress expressly determined in the Fiscal Responsibility Act of 2023

that the national interest requires this essential project’s timely completion. Unless

promptly vacated by this Court, the Fourth Circuit’s stays will harm the public

interest—which requires that construction begin by no later than July 26, 2023—

while disregarding Congress’s findings about what the public interest requires.

A. Natural Gas Has Important Benefits

Natural gas is one of the most valuable natural resources in the United States.

Not only does this form of energy provide heat for homes and cooking, hundreds of

consumer products used every day,2 and many industrial uses, but it is also a primary

feedstock for power generation. In 2022, the United States used more than 32 trillion

cubic feet of natural gas, which accounts for approximately one third of all energy use

2 See, e.g., No Substitute for Products Made from Natural Gas & Oil: Saving

Lives

&

Enhancing

Safety

During

COVID,

PIOGA,

at

https://pioga.org/publication_file/Just_The_Facts_Products_From_Gas_Oil.pdf,

(listing items made from natural gas and oil found in every emergency room).

5

2,

in the country. See, e.g., Natural Gas Explained: Use of Natural Gas, U.S. Energy

Info.

Admin.,

https://www.eia.gov/energyexplained/natural-gas/use-of-natural-

gas.php.

There are many reasons for the widespread and growing use of natural gas.

One is availability. The United States is home to some of the largest natural gas

reserves—primarily shale formations—on earth.

Over 600 trillion cubic feet of

natural gas can be economically recovered in the United States using just existing

technology, and for decades that volume has increased annually as technology

improves. See, e.g., Natural Gas Explained: How Much Natural Gas Is Left, U.S.

Energy Info. Admin., https://www.eia.gov/energyexplained/natural-gas/how-muchgas-is-left.php. Much of that volume is found in the “Marcellus shale play in the

Appalachian Basin, spanning Ohio, Pennsylvania, and West Virginia.” Natural Gas

Explained: Where Our Natural Gas Comes From, U.S. Energy Info. Admin.,

https://www.eia.gov/energyexplained/natural-gas/where-our-natural-gas-comesfrom.php. In fact, more than 100 trillion cubic feet of natural gas is available under

existing economic and technological conditions in Pennsylvania alone, with another

roughly 50 trillion cubic feet in West Virginia and 32 trillion cubic feet in Ohio. See,

e.g., Natural Gas Explained: How Much Natural Gas Is Left, supra. According to the

U.S. Energy Information Administration, there are 710 drilled-but-not-completed

wells (“DUCs”) in the Appalachian Basin as of June 30, 2023. Drilling Productivity

Report, DUC Well by Region (Appalachian Basin), U.S. Energy Info. Admin., July 17,

6

2023, https://www.eia.gov/petroleum/drilling/#tabs-summary-3.

Placing MVP in

service could lead to completion of these wells, thereby increasing production.

Another reason for the substantial natural gas usage in the United States is

its affordability—at least for those in geographic regions that can access it. Because

natural gas is so abundant compared to other forms of energy, it can significantly

decrease a user’s costs. According to the federal government, for example, natural

gas is nearly 3.5 times more affordable than electricity as a residential energy source.

See, e.g., Representative Average Unit Costs of Energy, U.S. Dep’t of Energy, 87 Fed.

Reg. 12681, 12682 (Mar. 7, 2022).

Especially compared to the types of fuel that once dominated the U.S. energy

market and still power most of the rest of the world, natural gas is also good for the

environment. “Burning natural gas for energy results in fewer emissions of nearly

all types of air pollutants and carbon dioxide (CO2) than burning coal or petroleum

products to produce an equal amount of energy.” Natural Gas Explained: Natural

Gas

and

the

Environment,

U.S.

Energy

Info.

Admin.,

https://www.eia.gov/energyexplained/natural-gas/natural-gas-and-the-environment.php.

Replacing coal with natural gas thus results in a roughly 60% reduction in CO2

emissions. See, e.g., Environment Baseline, Volume 1: Greenhouse Gas Emissions

from the U.S. Power Sector at 18, U.S. Dep’t of Energy (June 16, 2016). And on this

front, natural gas from Appalachia is particularly beneficial: the region is the largest

producer but has among the lowest methane-emission intensity of all major oil and

natural gas basins in the country. See Benchmarking Methane and Other GHG

7

Emissions of Oil & Natural Gas Production in the United States, Clean Air Task

Force, at 15, https://www.catf.us/resource/benchmarking-methane-emissions/, (June

1, 2021).

The United States’ access to an abundant, affordable, low-emissions energy

source has resulted in predictable environmental performance. From 2005 to 2019,

the United States led the world in emissions reductions, decreasing its annual

emissions by approximately 960 million metric tons per year, approximately 61% of

which was attributable to natural gas replacing coal for power generation. See

Unleashing

U.S.

LNG,

EQT

Corp.,

at

19,

https://www.eqt.com/wp-

content/uploads/2022/03/LNG_Final.pdf (citing World Energy Outlook 2021, Int’l

Energy Agency, https://iea.blob.core.windows.net/assets/4ed140c1-c3f3-4fd9-acae789a4e14a23c/WorldEnergyOutlook2021.pdf; U.S. Energy-Related Carbon Dioxide

Emissions,

2019,

U.S.

Energy

Info.

Admin.,

https://www.eia.gov/environment/emissions/carbon/archive/2019/pdf/2019_co2analys

is.pdf). To put this into context, the amount of emissions reduction from coal-to-gas

switching in the United States alone was roughly the same as the total emissions

reductions from the United Kingdom, Italy, Germany, and Japan combined, the next

highest performing countries globally. See id.

B. Challenges To Greater Use Of Natural Gas

Expanding access to natural gas requires pipeline infrastructure. Because

reserves are not uniformly distributed, and because natural gas is a gas, pipeline

infrastructure is required to transport gas from producing regions to regions of

consumption. As a result, prices for natural gas “vary greatly” depending on where

8

a user is located. Natural Gas Explained: Natural Gas Prices, U.S. Energy Info.

Admin., https://www.eia.gov/energyexplained/natural-gas/prices.php. In fact, two of

the most significant pricing factors are “[d]istance from where natural gas is produced

or stored” and “[a]vailability and capacity of transmission pipelines to move natural

gas from producing areas, storage facilities, and trading hubs to distribution hubs.”

Id.

Pipelines allow natural gas to leave the Appalachian Basin, thus increasing

the supply of this energy source in other regions and lowering prices. This concept—

known as “takeaway capacity”—is critical. App’x 42. Without the ability to transport

natural gas from where it is found to where it is needed, the value of this important

natural resource for consumers and producers is considerably reduced.

Unfortunately, “[t]he Appalachian Basin has recently experienced periods in

which natural gas production has surpassed local takeaway capacity.” Id. Absent

“significant Appalachian Basin takeaway capacity,” natural gas producers and

shippers are unable to efficiently respond to market demand and consumer needs.

Id. This logistical reality explains why greater pipeline capacity “increase[s] service

reliability and will ultimately reduce the excessive prices that end users often pay for

natural gas.” App’x 43; see also, e.g., App’x 23, 49.

The criticality of pipeline infrastructure to expanded consumption of natural

gas has not been lost on those that oppose the use of natural gas as an energy source.

In the past decade, these groups have targeted natural gas pipeline infrastructure in

litigation, in particular infrastructure emanating from the Marcellus Shale to service

9

demand regions in either the Northeast or Southeast. And they have been highly

successful. The amount of interstate natural gas pipeline capacity additions has

dropped from over 28 billion cubic feet per day in 2017 to under 1 billion cubic feet

per day in 2022, the least capacity additions on record. See, e.g., The Least U.S.

Interstate Natural Gas Pipeline Capacity On Record Was Added In 2022, U.S. Energy

Info.

Admin.

(Mar.

2,

2023),

https://www.eia.gov/todayinenergy/detail.php?id=55699#. During this time, roughly

7 billion cubic feet per day of pipeline infrastructure intended to address unmet

demand in Northeast and the Southeast United States has been canceled or put on

hold as a result of excessive litigation delays and costs. See Feb. 16, 2022 EQT Corp.

Ltr. to J. Granholm at 2, https://www.eqt.com/wp-content/uploads/2022/02/Letter-toSecretary-Granholm-vF2-2.16.22-1.pdf (table of canceled or opposed pipelines and

their volume capacities).

As a result of the success of these opposition groups in blocking this needed

infrastructure, significant population centers—particularly in the Northeast, MidAtlantic, and Southeast—pay considerably more than other regions do:

10

Natural Gas Explained: Natural Gas Prices, supra. Even more concerning, these

regions, in particular in the Northeast, have faced the uncertainty and significant

risk associated with potential power reductions and blackouts. See, e.g., 2021/2022

Winter

Outlook,

ISO

New

England,

at

2,

https://www.iso-ne.com/static-

assets/documents/2021/12/20211206_winteroutlook2122_pressconference.pdf (“three

variables could put the region in a more precarious position than past winters and

force the ISO take emergency actions, up to and including controlled power outages”);

2023/2024 Winter Outlook, ISO New England, at 6, https://www.iso-ne.com/staticassets/documents/2023/05/npc-2023-05-04-coo-rpt-2023-24-winter-outlookscenarios.pdf (“under [cold winter with several cold stretches] scenario, ISO expects

that capacity deficiency actions under [Operating Procedure 4] may be necessary

across a few days”).

Perversely, while many of the opponents to natural gas pipeline infrastructure

claim to be acting on behalf of the environment, the blocking of natural gas pipeline

11

infrastructure has resulted in increased emissions, with New Englanders burning

fuel oil and the Southeast continuing to unnecessarily rely on coal-fired power

generation. Because of the successful oppositions to natural gas infrastructure—the

same type of infrastructure that facilitated the United States’ world-leading

emissions reduction since 2005—it is likely that the current administration will be

the first to oversee increasing domestic emissions this century.

C. The MVP Project, Congress’s Factual Findings, And The Urgent

Need For Completion

As the Emergency Application documents, MVP has been working for more

than six years to increase takeaway capacity from the Appalachian Basin. The

Pipeline will expand the volume of gas that can move to other regions, thereby

reducing prices and creating significant environmental benefits. As EQT explained

to the Federal Energy Regulatory Commission, “spot prices in the Southeast region

have consistently been almost 50% higher than those in Appalachia,” and during

winter, prices may be “nearly triple.” Comments of EQT Energy, LLC in Support of

Completion of the Mountain Valley Pipeline and the Requested Extension of Time

(July 25, 2022), https://elibrary.ferc.gov/eLibrary/filelist?accession_num=202207255139.

It thus is “abundantly clear” that lack of takeaway capacity from the

Appalachian Basin is “harming consumers’ financial wherewithal” right now, and the

Pipeline “will undeniably help to remedy the situation.” Id.

The need for additional takeaway capacity, moreover, extends beyond national

borders. As discussed above, increased domestic use of natural gas has dramatically

reduced U.S. carbon emissions. The rest of the world, by contrast, remains largely

12

where the United States was decades ago: Global coal consumption is at all-time

highs and accounts for roughly half of foreign carbon emissions. In 2021 alone, the

increase in emissions from international coal had the environmental effect of

offsetting roughly fifteen years of investment in solar and wind in the United States.

See Electric power sector CO2 emissions drop as generation mix shifts from coal to

natural

gas,

U.S.

Energy

Info.

Admin.,

https://www.eia.gov/todayinenergy/detail.php?id=48296#:~:text=Of%20the%20819%

20million%20metric,the%20increase%20in%20renewable%20generation

(June

9,

2021) (“Of the 819 million metric ton decline in CO2 emissions from 2005 to 2019,

approximately 248 million metric tons [or 0.28 gigatons] (30%) of that decline is

attributable to the increase in renewable generation.”); Global Energy Review: CO2

Emissions

in

2021,

Int’l

Energy

Agency,

at

1,

4,

(noting

that

CO2

https://iea.blob.core.windows.net/assets/c3086240-732b-4f6a-89d7db01be018f5e/GlobalEnergyReviewCO2Emissionsin2021.pdf

emissions increased by over 2 gigatons in 2021 and that coal accounted for over 40%

of the overall growth in CO2 emissions that year, meaning coal was responsible for

approximately 0.8 gigatons of increased CO2 emissions worldwide).

To address the unchecked growth in international coal consumption and

associated emissions, countries like the United States must provide access to

alternatives.

Two-thirds of the world’s economically recoverable natural gas

resources sit within the borders of just four countries—the United States, Russia,

Iran, and Qatar—and supplanting coal with natural gas could cut emissions in half,

13

but only if supply can meet demand. Modern shipping technology allows tankers to

transport liquified natural gas to non-producing countries. See, e.g., Natural Gas

Explained:

Liquefied

Natural

Gas,

U.S.

Energy

Info.

Admin.,

https://www.eia.gov/energyexplained/natural-gas/liquefied-natural-gas.php.

Yet

without pipelines connecting natural gas reserves to export facilities, it is impossible

to move natural gas across seas.

Time is also of the essence. Unless construction begins again by no later than

July 26, 2023, “it is extremely unlikely that Mountain Valley will be able to complete

construction before Spring 2024.” App’x 58. This means that users of natural gas

will not be able to access it in the amounts they need during the winter months, when

energy is generally most necessary and expensive. See, e.g., App’x 23. Furthermore,

if the Pipeline is prevented from being completed prior to another winter, natural gas

producers will be irreparably affected. For years, producers have waited, planned,

and adjusted as construction of the project started and stopped in response to a deluge

of legal challenges. Now, at last, the Pipeline is nearly complete, and both Congress

and the Executive Branch have greenlit the last leg of its journey.

Producers

therefore are preparing to finally access this important piece of infrastructure. In

fact, producers need “the Project be completed and placed into service as soon as

possible,” App’x 42-43, or else their ability to timely provide consumers with this

necessary energy will be irreparably harmed.

EQT, for example, requires the

Pipeline’s prompt completion so that it can “deliver the gas EQT has extracted to

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market,” “meet its customers’ need for natural gas,” and “satisfy its delivery

obligations.” App’x 43.

Recognizing these facts, Congress enacted legislation to prevent further delays

of the Pipeline as part of the Fiscal Responsibility Act of 2023.

Of particular

significance, Congress “found” that the “national interest” requires “timely

completion of construction and operation of the Mountain Valley Pipeline.” Act,

§324(b). Accounting for the nation’s current state of pipeline infrastructure and the

need for greater takeaway capacity from the Appalachian Basin, Congress also found

that the Pipeline will “serve demonstrated natural gas demand in the Northeast, MidAtlantic, and Southeast regions” and will “increase the reliability of natural gas

supplies and the availability of natural gas at reasonable prices.” Id. Furthermore,

observing the outsized importance of the energy sector to the nation’s overall

economic health and the cross-cutting value of job creation, Congress also found that

prompt completion of the Pipeline will “allow natural gas producers to access

additional markets for their product.”

Id.

Finally, reflecting the considerable

environmental benefits of natural gas over other forms of energy, Congress also found

that the Pipeline will “reduce carbon emissions and facilitate the energy transition.”

Id.

Congress made these findings with good reason: prompt completion of the

Pipeline is essential if natural gas producers are to meet “customers’ need for natural

gas” by transporting this critical energy source to where it is needed. App’x 43.

Despite these considerable public benefits—and Congress’s findings regarding

them—the Fourth Circuit indefinitely stayed completion of the Pipeline during the

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entire pendency of the petitions on review. See App’x 1-2, 3-4. The consequence of

those stays (absent vacatur by the Court) is that the Pipeline will not be completed

this year despite Congress’s findings.

Without this Court’s intervention, the

cascading effects of that delay will be substantial. Because it offered no analysis, the

Fourth Circuit did not explain how that outcome purports to further the public

interest. As set forth below, it cannot, and the stays should be immediately vacated.

ARGUMENT

Traditional stay factors govern whether to grant a stay pending judicial review.

See, e.g., Nken v. Holder, 556 U.S. 418, 426 (2009).

This Court thus considers

“(1) whether the stay applicant has made a strong showing that he is likely to succeed

on the merits; (2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties interested

in the proceeding; and (4) where the public interest lies.” Id.

For the many reasons set forth in the Emergency Application, the Fourth

Circuit’s indeterminate injunctions (denominated as “stays”), which serve to disrupt

time-critical work on the Pipeline, should be vacated. The Fourth Circuit lacked

jurisdiction to issue the “stays,” and any constitutional objection is in the wrong

forum and meritless in any event. Furthermore, MVP (and many others) will suffer

irreparable injury, while the Pipeline’s opponents have no lawful interests to offset

that injury.

As MVP explains, moreover, the public interest also firmly favors

expeditious completion of this important project.

Here, drawing on their deep

experience with the production and distribution of natural gas, Amici write to further

16

explain the harms that delay will impose on the public and why the final stay factor—

“where the public interest lies”—overwhelmingly requires immediate vacatur.

The Public Interest Overwhelming Supports Vacating The Stays.

By any measure, the public benefits from greater natural-gas pipeline capacity.

Where available, natural gas is more affordable than coal-generated electricity and

much better for the environment. It is also one of the nation’s most abundant and

significant natural resources—one that strengthens economic well-being, reduces

dependence on foreign energy, and produces tens of thousands of jobs for hardworking

Americans.

Any of these benefits—and certainly the combined force of all of them—confirm

that prompt completion of the Pipeline is in the public interest.

Importantly,

however, the Court need not take Amici’s word for it: Congress itself has considered

this very issue and definitively declared what policy will best serve the public

interest. That is why Congress made the findings that it did; that is why Congress

determined for itself the issues that Respondents seek to have the courts secondguess; and that is why Congress specifically identified the court that can exercise

jurisdiction respecting challenges to the Pipeline—categorically excluding the Fourth

Circuit from any involvement. Where, as here, Congress has determined what the

“national interest” requires, Act, §324(b), foundational separation-of-powers

principles demand that the judiciary respect Congress’s judgment.

17

A. Congress’s Judgment About What The Public Interest Requires

Should Be The Beginning And End Of The Issue.

Under our system of government, it is “up to Congress” to determine what “the

public interest” requires. Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs.,

141 S. Ct. 2485, 2490 (2021) (per curiam).

Where “an issue involves a host of

considerations that must be weighed and appraised, it should be committed to those

who write the laws rather than those who interpret them.” Ziglar v. Abbasi, 582 U.S.

120, 135-36 (2017) (quotations omitted). This is because “the Legislature is in the

better position” to decide what is in “the public interest.” Id. at 136. Indeed, Congress

has “exclusive” authority “not only to formulate legislative policies and mandate

programs and projects, but also to establish their relative priority for the Nation.”

Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978). Because determining “whether

an injunction”—or, in this case, a stay—“should issue” requires a court to choose

“between conflicting public interests,” it follows that “[w]hen Congress itself has

struck the balance, has defined the weight to be given the competing interests, a court

of equity is not justified in ignoring that pronouncement.” Youngstown Sheet Tube

Co. v. Sawyer, 343 U.S. 579, 609-610 (1952) (Frankfurter, J, concurring).

In light of these bedrock principles, courts should defer to Congress’s judgment

about what the public interest requires. See, e.g., Dist. 4 Lodge of the Int’l Ass’n of

Machinists & Aerospace Workers Loc. Lodge 207 v. Raimondo, 18 F.4th 38, 49 (1st

Cir. 2021) (“Congress has effectively declared the public interest and weighed the

equities…. Whether the statutory framework that requires this result should be

changed is up to Congress, not the courts.”); Sierra Club v. Trump, 929 F.3d 670, 707

18

(9th Cir. 2019) (where Congress has determined what the “public interest” requires,

“[i]t is not for us to reach a different conclusion”); League of Women Voters of U.S. v.

Newby, 838 F.3d 1, 13 (D.C. Cir. 2016) (emphasizing what “Congress … declared to

be the public interest”). So it is here.

The deference owed to Congress is even greater in this case, moreover, because

the Executive Branch—across multiple administrations—has also concluded that the

Pipeline should be completed. See, e.g., Emergency App. at 4 (describing agency

approvals MVP has obtained); see also Apr. 21, 2023 J. Granholm Ltr. to FERC,

https://elibrary.ferc.gov/eLibrary/filelist?accession_num=20230424-4000,

(recognizing that “the Federal Energy Regulatory Commission…has completed its

regulatory authorizations for the MVP project”). In assessing the public interest, an

Article III court should not lose sight of what the other branches have determined.

Cf. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24-26 (2008) (vacating

injunction in light of “great deference” owed to a coordinate branch of government).

B. The Public Interest Overwhelming Supports The Pipeline’s Prompt

Completion.

For the reasons identified by Congress, the public interest overwhelming

supports prompt completion of the Pipeline and calls out for this Court to promptly

vacate the Fourth Circuit’s stays. Finishing the Pipeline now, rather than delaying

it to 2024 (or to some unknown date beyond), directly serves the public interest in

numerous ways.

First, the public needs greater access to affordable, reliable energy now, and

the Pipeline will provide exactly that. As Congress determined, the Pipeline will

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“serve demonstrated natural gas demand in the Northeast, Mid-Atlantic, and

Southeast regions” while “increas[ing] the reliability of natural gas supplies and the

availability of natural gas at reasonable prices.” Act, §324(b). As Secretary of Energy

Granholm explained, “the MVP project will enhance the Nation’s critical

infrastructure for energy and national security.” Granholm Ltr., supra, at 1. At

present the Appalachian Basin does not have enough takeaway capacity, thus

preventing natural gas that exceeds local needs from being transported to where it

needs to go so it can be used to effectively and reliably provide affordable energy. See,

e.g., App’x 42 (explaining that “natural gas production has surpassed local takeaway

capacity” and that producers need “significant Appalachian Basin takeaway

capacity”).

Second, the energy industry—and the innumerable people whose livelihoods

depend on the energy industry—require access to additional demand regions. The

Pipeline will provide that access. Completing the Pipeline now provides certainty

and permits producers to plan both new drilling and the completion of existing wells

accordingly; by contrast, allowing an indeterminate stay (from a court with zero

authority to issue it in the first place) with no idea when the final few miles of needed

pipeline will be completed puts producers, consumers, and everyone in between along

the supply chain in an impossible position—with ramifications for global energy

markets. As Congress found, the Pipeline will “allow natural gas producers to access

additional markets for their product.” Act, §324(b). By building additional pipeline

20

infrastructure, U.S. producers will be able to transport even more of this resource to

regions where it is most valuable, benefitting everyone.

Third, greater access to clean energy is in the public interest, and the Pipeline

will directly promote that access.

Natural gas is cleaner energy than other

hydrocarbons and is an essential tool in the effort to address carbon emissions. Where

natural gas is not available, other fossil fuels (typically coal) fill the void. Natural

gas, moreover, is an important complement to renewable energy sources because it is

not dependent on the vagaries of wind patterns or cloud coverage. Indeed, “[n]atural

gas—and the infrastructure, such as MVP, that supports its delivery and use—can

play an important role as part of the clean energy transition.” Granholm Ltr., supra,

at 1. Congress therefore concluded that the Pipeline will “reduce carbon emissions

and facilitate the energy transition.” Act, §324(b). No court can gainsay Congress’s

determination, well supported by science, that the Pipeline will benefit the

environment.

Finally, the Pipeline should be finished as soon as possible—and certainly

before winter. Millions of Americans will benefit from the Pipeline, and MVP has

worked for years to bring those benefits to them. Further delay will benefit no one.

Yet unless the Court vacates the Fourth Circuit’s stays by July 26, the Pipeline will

not be finished until next year at the earliest. At the same time, further delay will

significantly harm natural gas producers who need the Pipeline to be completed “as

soon as possible” if they are to satisfy their “customers’ need for natural gas” while

meeting their “delivery obligations.” App’x 42-43. An inability to do so will not only

21

literally leave consumers in the cold, but will also harm the goodwill of everyone

upstream in the supply chain.

Such delay will also damage the global

competitiveness of the U.S. energy industry and undermine energy independence.

Congress thus found that “the timely completion of construction and operation of the

Mountain Valley Pipeline is required in the national interest.” Act, §324(b) (emphasis

added). That determination was correct, and was Congress’s to make. In the wake

of the Fourth Circuit’s unexplained and unauthorized stays, only this Court can

vindicate Congress’s charge that further delay of this important project threatens the

national interest. The Court should do so immediately so that consumers, producers,

the environment, and everyone and everything in between can reap the benefits of

the Pipeline that Congress ordained by law should be completed forthwith.

CONCLUSION

For the foregoing reasons, Amici respectfully urge the Court to grant the

Emergency Application and vacate the Fourth Circuit’s stays immediately and permit

the final incremental steps of this vital project finally to be completed.

Respectfully submitted,

/s/ John C. O’Quinn

RANDALL S. RICH

PIERCE ATWOOD LLP

1875 K STREET, NW, SUITE 700

Washington, DC 20006

(202) 530-6424

rrich@pierceatwood.com

JOHN C. O’QUINN

Counsel of Record

AARON L. NIELSON

REX W. MANNING

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

john.oquinn@kirkland.com

Counsel for Gas and Oil

Association of WV, Inc. and

Pennsylvania Independent Oil &

Gas Association

Counsel for EQT Corporation

22

ERIN W. MCDOWELL

General Counsel

RANGE RESOURCES

CORPORATION

100 Throckmorton Street

Fort Worth, TX 76102

(724) 544-2302

emcdowell@rangeresources.com

TERRY R. BOSSERT

General Counsel

MARCELLUS SHALE COALITION

300 N. Second Street, Suite 1102

Harrisburg, PA 17101

(717) 603-0714

tbossert@marcelluscoalition.org

Counsel for Marcellus Shale Coalition

Counsel for Range Resources

Corporation

July 19, 2023

23

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Amicus Curiae Brief — Mountain Valley Pipeline, LLC Applicant v. The Wilderness Society, et al. | Frix