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Debt Deal Includes a Green Light for a Contentious Pipeline

Nov 10, 2023Nov 10, 2023


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Climate activists are livid over a provision in the debt limit agreement that orders federal agencies to issue permits for the Mountain Valley Pipeline — and says courts can't review them.

By Coral Davenport and Brad Plumer

Reporting from Washington

Environmental activists are enraged by the deal struck between President Biden and Republicans to raise the debt ceiling because it would also expedite construction of a bitterly contested gas pipeline and includes unusual measures to insulate that project from judicial review.

The $6.6 billion Mountain Valley Pipeline, intended to carry natural gas about 300 miles from the Marcellus shale fields in West Virginia across nearly 1,000 streams and wetlands before ending in Virginia, is a top priority of Senator Joe Manchin III, Democrat of West Virginia, but has been fought by environmentalists and many Virginia Democrats for a decade.

A constellation of environmental groups condemned the pipeline's inclusion in a debt limit deal, with one group, Climate Defiance, planning to protest Tuesday evening at the New York home of Senator Chuck Schumer, the majority leader.

One of the companies behind the pipeline, NextEra Energy, is a major donor to Mr. Schumer and Mr. Manchin. In the 2022 cycle, NextEra's employees and political action committees gave $302,600 to Mr. Schumer and $60,350 to Mr. Manchin, according to the Center for Responsive Politics.

Mr. Manchin faces a potentially difficult re-election campaign next year, and pushing the pipeline to completion could help him with voters. Gov. Jim Justice, a popular Democrat-turned-Republican, has announced he will seek the Senate seat in West Virginia, a ruby red state that President Trump carried by nearly 40 percentage points in 2020. Retaining that seat is a priority for Democrats.

"We are in a bleak moment," Climate Defiance wrote on Twitter. "The politicians we trusted with our lives sold us out to fossil fuel CEOs. We have been stabbed in the back. We do not know if we will win but dammit we will not go down without a peaceful uprising like you’ve never seen."

But White House negotiators, who inserted the pipeline language into the debt limit deal, say Mr. Biden was honoring an agreement that he struck last summer with Mr. Manchin to secure the senator's tiebreaking vote to pass the landmark Inflation Reduction Act, which includes more than $370 billion for clean energy projects.

White House officials say that the benefits from that law far outweigh any new greenhouse gas emissions produced as a result of the West Virginia pipeline. They also noted that they were able to block Republicans from rolling back many of the climate law's clean energy provisions as part of the debt limit compromise.

The bill includes some other small steps aimed at getting energy projects of all types approved more quickly by modifying federal permitting policies under the National Environmental Policy Act. White House officials said they viewed the construction of the Mountain Valley Pipeline as largely a fait accompli, since more than half of the project has been constructed and just a handful of permits remain to be issued.

But opponents of the pipeline argue that completion was far from certain as several court cases are pending. A provision in the debt deal could deem those challenges moot, and would block any future lawsuits.

The agreement would order federal agencies to approve any outstanding permits for the pipeline within 21 days and exempt those permits from judicial review. And if any entity wanted to challenge the legality of that decision, the legislation transfers jurisdiction from the U.S. Court of Appeals for the Fourth Circuit, in Richmond, where environmentalists have won some court victories, to the U.S. Court of Appeals for the District of Columbia Circuit.

"This is an unprecedented end run around the courts, which have repeatedly rejected permits over M.V.P.'s failure to comply with basic environmental laws," said Ben Jealous, executive director of the Sierra Club, which has challenged several permits related to the pipeline. "We’re exploring the legal implications of this proposal and our next steps."

In March, the Court of Appeals for the Fourth Circuit ruled in favor of a case brought by the Sierra Club and other environmental groups that argued that the pipeline should be subject to stronger Clean Water Act reviews.

Senator Tim Kaine, Democrat of Virginia, said he planned to file an amendment to strip out the pipeline language from the debt limit bill. A spokeswoman for Mr. Kaine said he was "extremely disappointed" in the language "bypassing the normal judicial and administrative review process every other energy project has to go through."

On Tuesday, Virginia's six House Democrats filed an identical amendment, although they did not threaten to vote against the larger bill if their effort to amend it did not succeed.

"We have serious concerns regarding the adverse climate and environmental justice impacts this project will have on vulnerable communities in our Commonwealth," said the Virginia House Democrats in a statement. "This project would disproportionately impact the most vulnerable among us, including low-income, the elderly, and tribal and Indigenous communities throughout Virginia."

The Mountain Valley Pipeline has been opposed for years by environmentalists and civil rights activists. Scientists have warned that nations must stop approving new fossil fuel projects if they want to constrain global warming, something President Biden has said is a top priority.

It is unusual for Congress to intervene to protect specific infrastructure projects from court oversight, said Michael Gerrard, an environmental law expert at Columbia University. In one similar instance in the 1970s, lawmakers from Tennessee managed to exempt a dam in their state from the Endangered Species Act in order to overcome legal challenges, a move that garnered widespread attention at the time.

The effort to fast-track the Mountain Valley Pipeline could set a precedent for other projects tied up in courts, Mr. Gerrard added. "One could imagine another company saying to their favorite senator, ‘Hey, Joe Manchin did this for them, why not for us?’" he said.

Some activists warned that the move could cost Mr. Biden election-year support among the young, climate-minded voters who helped elect him in 2020 but are now angered at his administration's approval of multiple fossil fuel projects, including the Mountain Valley Pipeline, the Alaska oil drilling project known as Willow, and a contentious pipeline project that would carry hundreds of thousands of barrels of oil through Minnesota's delicate watersheds.

That anger comes even as Mr. Biden has pushed through both the new climate law, which is projected to reduce America's climate-warming carbon dioxide emissions by up to one billion tons in 2030, as well as proposed regulations that could eliminate as much as 15 billion tons of carbon dioxide by 2055.

Federal regulators have estimated that if all the natural gas carried in the Mountain Valley Pipeline were burned in power plants and homes, it would release about 40 million tons of carbon dioxide a year — the equivalent of what nine million cars produce annually.

But calculating the full impact on climate change is trickier, experts said. Some of that gas might have been burned anyway even if the pipeline were not built, and some of it could replace coal, an even dirtier fuel still widely used in the Southeast, though regulators did not try to quantify these factors.

Several climate policy experts said that in terms of reducing carbon dioxide emissions, it is worthwhile to allow the Mountain Valley Pipeline in order to keep the Inflation Reduction Act intact.

In a closely divided Congress, compromise is essential, said David Axelrod, the Democratic strategist who helped Barack Obama win the White House. "The question is whether the steps forward you take are greater than whatever steps back you have to take in order to make these deals work," he said. "And Biden is making those calculations."

And by giving Mr. Manchin a win to trumpet to his constituents, Democrats could hope to keep the West Virginia Senate seat, "which will have far more benefits to long-term climate policies and politics," Paul Bledsoe, a former climate aide in the Clinton administration, wrote in an email.

Mr. Axelrod said he did not think Mr. Biden would lose the support of climate voters once the race for the presidency was clearly defined.

"The question at the end of the day is, not what people are feeling now, but what judgments they’ll make in the fall of 2024," Mr. Axelrod said. "But the choice is likely to be so stark and important for the climate movement that's it's probably a good bet that people will be highly motivated."

Coral Davenport covers energy and environmental policy for the climate desk from Washington. She was part of a Times team that was a finalist for the Pulitzer Prize for distinguished public service journalism in 2020, and part of a Times team that received Columbia University's John B. Oakes award for distinguished environmental journalism in 2018. @CoralMDavenport • Facebook

Brad Plumer is a climate reporter specializing in policy and technology efforts to cut carbon dioxide emissions. At The Times, he has also covered international climate talks and the changing energy landscape in the United States. @bradplumer