When UVA Law School Professor Cale Jaffe heard about efforts to fast-track the Mountain Valley Pipeline, he thought of two cases where courts had upheld objections from environmental groups. One involved the Tennessee Valley Authority and construction of a dam that threatened snail darters – small fish protected by the Endangered Species Act.
“That case went all the way up to the U.S. Supreme Court. Those lobbying to protect the species prevailed at the Supreme Court,” he says.
But in 1979, Congress approved a spending bill that authorized completion of the dam.
“Within about 12 hours after that appropriations bill became law, the bulldozers started moving again on that dam project,” Jaffe recalls.
Then, in the 90’s, came efforts to protect spotted owls in the old growth forests of Washington State and Oregon. A federal court again sided with environmentalists, but Jaffe says Congress got creative.
"It suspended all environmental laws for one year to allow for logging in national forests in the state of Washington and the state of Oregon in 1995-1996."
Still, he expects those who oppose the Mountain Valley Pipeline to challenge the right of Congress to keep federal judges from ruling on three MVP cases already underway – citing the constitution’s separation of powers clause.
“You had active litigation in the federal courts, under rules that Congress had previously established, and then the question is, ‘Can congress say: Y’know in this case we don’t like the way it’s going, and we’re picking this person to win the case?’” Jaffe concludes.
