Fiscal Responsibility Act of 2023--Motion to Proceed

Floor Speech

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Mr. KAINE. Mr. President, I rise to speak about a provision of the debt ceiling deal that I will later today offer an amendment so that we can remove it. It is the provision dealing with the Mountain Valley Pipeline.

I appreciate the hard bipartisan work that has been done to put together a deal. And the deal has things I like and things that I don't like. That is the nature of any deal that is struck between Houses of Congress controlled by different parties.

It would have been my intention to be a supporter of the deal despite its imperfections. However, a provision was added to the deal to green- light a pipeline project that goes through two States: West Virginia and my Commonwealth of Virginia.

It was struck without any consultation with either of the Virginia Senators. It is a highly controversial project in Virginia that directly impacts families whose land will be taken for the pipeline project.

I stand to speak on their behalf about the reasons that I will seek to remove the Mountain Valley Pipeline provision from the bill when we vote on it later tonight.

It would be one thing if you could build pipelines in midair, but you can't. To build a pipeline, you have to take people's land. Sometimes the land you take might be public land, a national park or a national forest, but in any pipeline project of size--and the Mountain Valley Pipeline is about 330 miles long--you have to take a lot of land from private landowners, most of whom don't want to give up their land. That means that when you do a pipeline project and you approve it and you give a private company the right to take people's land, you ought to do it carefully after significant deliberation.

So since the 1930s, there has been a pipeline permitting process that has required for an interstate pipeline--first a determination by the Federal Energy Regulatory Commission that there is a need for the pipeline, the gas pipeline, and then once that determination is made, a separate determination has to be made about what is the best route for the pipeline.

Once those determinations are made, you are able to take private land to build a pipeline even though those landowners will never benefit at all from having a pipeline cross their property.

Then, additionally, the permitting process isn't just about building, but it is about holding the developer to strict standards so that when they build the pipeline, they minimally disturb the land, they minimally affect species, and they minimally affect creeks and streams and river crossings.

The Mountain Valley Pipeline is proposed to go about 110 miles through the poorest part of my State--Appalachia. In the Appalachian region of Virginia, a lot of people don't have very much. For many of them, their land is what they have, and for many of them, that land has been in their family for generations. They are entitled to a fair process that would look at the need for the pipeline and what is the best route and then would insist that the pipeline be built to a high standard to maximally protect their property.

Congress has made a decision that this is not to be decided by Congress. Pipeline routing, pipeline need is not to be determined by Congress. Instead, you put it in administrative agencies. Why do you do that? It is because, A, they have expertise, and B, it is less likely to be abused.

If you were to let Congress do pipeline deals, it would be pretty easy for somebody to look at a map and say: Well, this county never voted for me. Why don't we run it through that county and take their land?

Instead, we remove it from Congress so that professionals can undertake the right analysis and review.

In this bipartisan debt ceiling deal, there is a provision to green- light one project in the United States, the Mountain Valley Pipeline-- to green-light it--and to say that there will be no more administrative processes to determine whether it had been fully permitted and no more ability for the courts to review the administrative Agency's decisions.

I strongly object to that. I don't have an objection to the pipeline itself. I have been asked again and again and again, and I said: This is not for Congress to decide. In fact, it would be wrong for Congress to do this. You should have an administrative process. You should go through it. A pipeline proponent should have to meet the standard, get over the hurdles, and when they do, then, OK, they should be enabled to take land and build a pipeline but only then. We shouldn't shorten it and give one project a green light.

This is ultimately about Virginians who care about their land. They don't want to give up their land for this pipeline because they don't think they will benefit from it.

Sometimes a county will take someone's land to build a road, and even if you are not happy about that, at least there is a road. You can have an ambulance get to your house or your kid can go out and catch a schoolbus on it. But a pipeline of this kind that is transmitting gas from one part of the country to the other--people can't hook into it to get low-cost natural gas. Many of the communities in Virginia that this pipeline will run across don't even have natural gas distribution to their communities. It might have some effect upon global gas prices, but that won't affect somebody who doesn't have gas service to their home.

So my Virginians just want to be sure that if this pipeline is built, it has met the requisite standards of the review agencies, both State and Federal, and it has withstood any court challenges.

This is a pipeline project that has been underway for a while. I know the proponents of this provision will say it has just been going on too long. But one of the reasons it has been going on for a while is because the company was slipshod in a lot of its operations and construction, particularly early in the life of this project. I do believe the company has better management now, but the project has been cited for dozens and dozens of Clean Water Act violations and other construction problems that have led to mudslides on people's property. That is why my Virginia constituents are so desiring that, let's do this the right way or let's not do it at all.

The provision in this bill not only frustrates these Virginia landowners who want to make sure that if their land is going to be taken, it is done in a fair way after deliberate consideration, but it also does something that I believe is unwarranted and really historical in the wrong way. It is a rebuke of the Fourth Circuit of the U.S. Court of Appeals, which is headquartered in Richmond, my hometown, which has been the court that has heard cases about the Mountain Valley Pipeline, challenges to agency decisions in the previous administration where the court said: Hey, look, the agency didn't do what they were supposed to do. Go back and do it right this time.

When landowners feel like they are being abused, they have a right to go to court and present their case, and the Fourth Circuit and the district courts within it have said: You have shown your case. The company didn't do it right. The agency didn't do it right. Go back and do it right.

That has made the company upset.

For 18 years, I tried cases in the Fourth Circuit, and I won some, and I lost some. When I lost, I wasn't happy, but if I lost, I would tell my client: We can appeal.

We would appeal to the Fourth Circuit. Sometimes I would win my appeal, and sometimes I would lose my appeal. When we lost, I wasn't happy, but we would try to get the U.S. Supreme Court to take up the case. Never once did I tell a client after a loss: What we need to do is go to Congress and take this case away from the Fourth Circuit and put it in a court that is more likely to be favorable.

I would never have thought to do that. No one gets that deal. No individual gets that deal. No civil rights plaintiff gets that deal. No criminal defendant gets that deal. No small business gets that deal. Most people would be embarrassed to ask for that.

I lost. I am unhappy. Why don't I get Congress to rewrite the rules of Federal jurisdiction and take this case away from the court that has made me unhappy and put it in another court? Yet that is what this bill will do. It will end further administrative review. It will end judicial review of any permit. And it will say only this: If someone wants to challenge what Congress is doing here, saying it is unlawful or unconstitutional or an overreach, they have to file that challenge in the DC Circuit Court of Appeals. They cannot file it in the Fourth Circuit where this project is being considered.

Both to protect these landowners, who have a right to a full and deliberate consideration if they are going to have to give up their land, and to protect the integrity of both our court system and this body, I strongly oppose this provision.

I will move later in the day to bring up my amendment, and I would encourage my colleagues to support me in it.

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