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National Security, West Virginia Natural Gas and Hampton Roads – A Proposed Federal Law

By James C. Sherlock, originally published in Bacon’s Rebellion and republished here by agreement. 

This is [part of] a series of columns recommending bringing West Virginia natural gas to Virginia and from there to our allies.  

The only way to do get that done with any assurance and speed under the energy emergency in which we find ourselves and the world is for a federal law to be passed that:

  • strips jurisdiction from federal courts over this specific pipeline because of national security requirements;
  • includes and similarly protects from lawsuits a new LNG terminal on either federal land or in the Port of Virginia;
  • directs federal regulatory agencies to work in partnership with developers to ensure the work meets environmental standards; and
  • authorizes the costs as an expenditure for the Department of Energy.

I have made that recommendation to Sen. Manchin’s Senate Energy and Natural Resources Committee.  Read Chairman Manchin’s opening remarks yesterday to his committee yesterday.  You will consider Sen. Manchin to be a potential yes on the proposal.

Sen. Joe Manchin (D-WV)
Sen. Joe Manchin (D-WV)

Committee attorneys can figure out the jurisdiction stripping language. They can also determine whether a federal law that strips jurisdiction from federal courts will also protect the project from state courts under the Supremacy Clause or additional language is needed.

Background. Since the start of the war in Ukraine, Republicans and many Democrats are looking for ways to boost U.S. production of energy.  

Virginia and our allies need more natural gas.  West Virginia has it.  Additionally, the U.S. Energy Information Agency has written that West Virginia needs to export more of it to maintain the long term health of the industry in that state.

Three different pipelines were proposed in 2014 to bring West Virginia gas to Virginia.  All are either cancelled or on hold.  Each has been plagued with lawsuits and adverse court decisions on pipelines by the federal 4th Circuit Court of Appeals in Richmond.  That court has consistently overruled the findings of the federal agencies responsible for certification of those pipelines.  

The Supreme Court has concluded as late as 2018 that Congress possesses largely “plenary” authority to determine what sorts of cases the federal courts may and may not hear. It is called jurisdiction stripping.

Proposal. I have a proposed to the Senate Energy and Natural Resources Committee a bill that:

  • provides for a natural gas pipeline from West Virginia to Hampton Roads either on the mostly approved route of the abandoned Atlantic Coast Pipeline or a new route using state land in interstate highway corridors.  I-64 runs directly from West Virginia to Hampton Roads. On June 29, 2021, the Supreme Court decided PennEast Pipeline Co. v New Jersey, 594 U.S. __ (2021). The Court held that the Federal Government had properly delegated to private companies’ federal authority to condemn necessary rights-of-way in state owned property;
  • provides a new LNG terminal in Hampton Roads;
  • includes language to strip jurisdiction from federal courts;
  • directs federal approval authorities to act in cooperation with the engineers of the pipeline and LNG terminal to ensure they meet federal environmental standards rather than rule after the fact.
  • authorizes the costs as an expenditure for the Department of Energy

We’ll see what the Senate does.

The President and the House would be put under tremendous pressure to support such a bill. Especially if it held hostage what has been usually in recent years an omnibus appropriations act.  

Both NATO and Vladimir Putin would be watching.

Virginians would watch to see how our Congressional delegation votes.  Before the fall elections.

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