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
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(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.