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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Hello, Nia, how are you?
N. Rodgers: I'm excellent. You know why?
J. Aughenbaugh: Why is that?
N. Rodgers: Because I figured out how to make everyone in the world angry. Everyone, all the peoples. I figured out how to make the courts mad and Congress mad, and people who own stuff mad, and people who don't own stuff mad, environmentalists, everybody, I figured out how to do it. What you do is you take a debt ceiling, what should be simple law, and you add a little amendment off to the side, cute little amendment. We briefly mentioned it before. But I had no idea it was going to actually make people as infuriated as it has made them, and not a few people.
J. Aughenbaugh: Quite a few. Listeners, what Nia is referring to is today's podcast is going to discuss one of the more controversial energy projects currently underway in the United States, the so called Mountain Valley Pipeline, MVP. But the story or the focus of today's podcast episode is some stuff that went down this summer. It relates to a law that Nia and I discussed in at least one, if not two previous podcast episodes. That was the infamous debt limit ceiling. What's the word I'm looking for? Dilemma controversy. The sky is falling.
N. Rodgers: We're going to revisit again in January because they only kicked that can. A little ways down the road.
J. Aughenbaugh: Earlier this year, Congress passed the Fiscal Responsibility Act, FRA. Now, this is the deal between the Republican-controlled House and the Biden administration to continue or raise the debt limit ceiling until 2025.
N. Rodgers: That's right. It's January of 2025.
J. Aughenbaugh: Because remember, Nia, they extended it to avoid the elections in November of 2024.
N. Rodgers: That's right. Now I remember the date. I had gotten the date wrong.
J. Aughenbaugh: One of the provisions of the law which was unrelated to the debt ceiling concerned the Mountain Valley Pipeline, the MVP. Now, for our listeners who don't know what the MVP is, it's a natural gas pipeline that would originate in northwest West Virginia, continue to western and southern Virginia, and then extend into North Carolina. Now, Nia and I have discussed off recording the MVP a
couple of times. It's a very controversial energy project because there are all opponents that have lined up, including the MVP requires extensive seizure of private property for the pipeline. A whole bunch of people in those three states, their property will be taken for the actual pipeline.
N. Rodgers: Under the rule of eminent domain.
J. Aughenbaugh: The power of eminent domain.
N. Rodgers: Which we have discussed on this podcast many times. When the government says, I sure could use that land for something else and they offer you what they call market rate, which many people will say is not technically market rate but below market rate. But they have to pay you. They can't just take your land. They do have to pay you for it, but they don't have to give you what the sentimental value is. This is my grandpa's land. When you're talking about West Virginia and you're talking about Virginia and you're talking about North Carolina, you are talking about people who've been on that land for generations. To say to them, here's $100 an acre for your land, that may be the market rate, but it is certainly not the emotional rate. But anyway, you were saying.
J. Aughenbaugh: Well, that touches upon the takings clause of the Fifth Amendment of the US Constitution. The government can take, thus the name of the clause. The government can take private property for public use as long as the government provides just compensation. Other opposition focused on the negative impacts of the pipeline to waterways, forest and various endangered species. It is a natural gas pipeline, Nia. There are a bunch of rocks.
N. Rodgers: Climate change. Would anyone like some climate change? Climate change being served in West Virginia?
J. Aughenbaugh: Then the Fourth, the pipeline, this is the key part for our discussion in today's podcast, Would more than likely lead to violations of various existing regulations concerning pollution runoff and sedimentation.
N. Rodgers: Which is where the environmentalists come in because they're like no, there are regulations about what you can do, about how much pollution you can make.
J. Aughenbaugh: That's right. These are all controlled by the Clean Water Act. A number of federal statutes, The Clean Water Act, the Endangered Species Act, the Clean Air Act. Again, all of this is supposed to be regulated by the EPA. In the Fiscal Responsibility Act, there were provisions concerning the pipeline, specifically about the pipeline. Approval of all remaining permits, even if there were objections to the permits being granted.
N. Rodgers: That part, I have to admit, sticks in my crop a little bit. They basically said, we're done having this discussion.
J. Aughenbaugh: This was the United States Congress that said this. The ratification of all prior federal agency permits, which was also controversial because the EPA had ratified various elements of the
pipeline construction, but the Fourth Circuit Court of Appeals had rejected some of those approvals. Now for listeners, those of you who are not judicial politics geeks like I am, the States of West Virginia, Virginia, and North Carolina are geographically all apart of the Fourth Circuit Court of Appeals in the federal court system. Any appeals of this pipeline were to occur in the Fourth Circuit Court of Appeals and this Circuit Court of Appeals, the Fourth was, should we say very skeptical.
N. Rodgers: They gave a little side-eye to the EPA.
J. Aughenbaugh: Now, the Fiscal Responsibility Act also further constrained judicial review of the permitting approval process. What judicial review remained was to be removed from the Fourth Circuit Court of Appeals to the DC Circuit Court of Appeals. Now you might be wondering, why might these appeals be removed. Well, the DC Circuit covers all federal agencies, and most federal agencies are headquartered where?
N. Rodgers: In DC.
J. Aughenbaugh: In DC. Now, that's the theoretical reason. The very practical reason why all these appeals were removed was that the DC Circuit Court of Appeals tends to defer to agency decisions. They're less skeptical of agency decisions, the Fourth had bed.
N. Rodgers: It's like choosing the judge that will help you out with your case.
J. Aughenbaugh: The Fiscal Responsibility Act was passed earlier this year. On July 10, the Fourth Circuit Court of Appeals once again issued a stay. They basically issued an injunction, stopping the permit approval process for the pipeline, because the Fourth Circuit claimed that the project still had various permitting issues.
N. Rodgers: That Congress hadn't done it right, basically.
J. Aughenbaugh: We'll get to that in just a moment. The Fourth Circuit, basically, in their July 10th day, acted as though the Fiscal Responsibility didn't never happened.
N. Rodgers: You know what? I might take that tack when I'm president. I might just say, I didn't read that act so it doesn't apply to me.
J. Aughenbaugh: Which by the way, the sheer chutzpah of the Fourth Circuit.
N. Rodgers: What act? We didn't hear about any act. We don't know what you're talking about. That is the very teenage response to, who broke this lamp? I don't know. I didn't even know there was a lamp there. Are you talking to me? Who are you?
J. Aughenbaugh: Sure. Me and my friends come down to this base bed every day after school. I don't recall seeing that lamp. Really? That's like me saying to my 11-year-old daughter, hey, can you get your clothes off the floor in your bedroom?
N. Rodgers: I don't have a floor.
J. Aughenbaugh: My daughter with a straight face will go in and say, I don't see any clothes on the floor, and I'm like, what?
N. Rodgers: Do we need to get you different glasses? The Fourth Circuit Court basically said.
J. Aughenbaugh: Stop.
N. Rodgers: Nobody does anything.
J. Aughenbaugh: Yes. Well, so basically the Fourth Circuit, Nia, said stop.
N. Rodgers: But not in the name of love.
J. Aughenbaugh: Nice Motown reference by the way.
N. Rodgers: Thank you.
J. Aughenbaugh: Anyway, that was the Supreme's.
N. Rodgers: Diana Ross in the Supreme's.
J. Aughenbaugh: I still remember concert footage to where they choreographed the Hand Out to Stop.
N. Rodgers: Yes. She don't never argued . Just did this. That's what he did to me. I'm like, yes, stop in the name of love, except not really so they're hold on. There no anything.
J. Aughenbaugh: There was no love there. The backers for the MVP appealed directly to the Supreme Court. Now, for those of listeners, again, who are not Supreme Court geeks like I am, this is the time of year that the Supremes are on vacation.
N. Rodgers: We had already wrapped up our summer.
J. Aughenbaugh: Yes.
N. Rodgers: Everybody was on vacation.
J. Aughenbaugh: Vacation. But the court using its shadow docket. Now, we've discussed the shadow docket in previous podcast episodes. But in short, what the shadow docket is, is where the court gets a motion, an appeal from a party, and instead of having full written briefs and oral arguments and deliberation, will just get written briefs, from the parties and then they'll go ahead and make a decision. It's called the shadow because they do everything behind closed doors. There's no oral argument.
N. Rodgers: There's no reporter sitting in the courtroom trying to read the questions because, you know how sometimes when they'll report back and they'll say clearly, Kagan feels this way because she asked the following questions. They're trying to read the court and there is none of that in the in the shadow docket.
J. Aughenbaugh: With the shadow docket, the decision doesn't even have necessarily an opinion.
N. Rodgers: They just say nope.
J. Aughenbaugh: What the court did was on July 30th, they overturned without any opinion, the Fourth Circuit courts stay.
N. Rodgers: Oh my gosh. This is like one of those things where you name your dog, stay. I mean, you say go stay, go stay.
J. Aughenbaugh: When the court issued its ruling on July 30th, almost immediately, there was media articles, there was commentary on the blogosphere discussing how it looked like the United States Congress was picking which court it wanted to go ahead and listen to. This somehow violates separation of powers, blah-blah and nobody else gets to go ahead and pick the court that they want to hear this. But let's break this down for just a minute, Nia. Now, Congress got a lot of criticism and we will discuss some of the criticism of Congress. But I want to remind listeners that all permitting required for energy projects was created because Congress passed laws saying that the permitting was necessary so if Congress passed those laws.
N. Rodgers: What could pass new laws that see undo the old laws.
J. Aughenbaugh: That's right.
N. Rodgers: Let's say turns out psych, we don't have any permitting process, so it's free for all. Go ahead, do whatever you want.
J. Aughenbaugh: Or they could go ahead and leave it to the States.
N. Rodgers: Or they can change the permitting process.
J. Aughenbaugh: Yes, they could make it more difficult. This all exists because Congress has, what constitutional authority, Nia.
N. Rodgers: Oh my gosh you with the Commerce Clause. Look at you and you're giggling. You're giggling about this because you know the Commerce Clause, you lunatic.
J. Aughenbaugh: But the pipeline crosses what?
N. Rodgers: Selling things across state boundaries, but it's also affecting people's lives. I can see where Congress claims the right to have the discussion through the Commerce Clause.
J. Aughenbaugh: Okay.
N. Rodgers: But it does seem to be a little court shopping to pick which court you want things to be heard in. I think that feels a little sketchy.
J. Aughenbaugh: That might be the case. But fundamentally, remember, Congress giveth and Congress can take it away. I'm paraphrasing administrative law scholar Jonathan Adler, who has written extensively about this particular case and he went ahead and said, yeah, this looks bad. On the other hand, who convinced Congress in the first place that we needed the permitting process? Environmentalists. If you're going to rely upon Congress to create the permitting process, don't necessarily be surprised when Congress goes ahead and says, yeah, not in this case.
N. Rodgers: Right.
J. Aughenbaugh: Now in terms of court jurisdiction, the federal courts, appellate jurisdiction, so federal courts ability to hear appeals, Nia, as stated in Article 3 of the constitution, is controlled by Congress. Congress goes ahead and pass the Clean Water Act, and they gave EPA the authority to issue regulations to clean up our waters, and the EPA comes up with a permitting process. Now, you're not happy with how the EPA does that, so you file an appeal, a claim with a federal district court and you can appeal it to an appellate court or the US Supreme Court but all of that is controlled by the Congress per Article 3 of the US Constitution unless you are claiming a constitutional right, and constitutional rights aren't created by Congress, they're found in the constitution. Congress can go ahead tomorrow and say you have no avenue of appeal in the federal courts. The example I always like to give in my classes, Nia, in my administrative law class, is Social Security. Grandma receives a check, and she receives a check in part because she qualifies for Social Security, but also because for years she has been disabled and hasn't been able to work. The Social Security Administration decides really grandma can work, she's not disabled. The first avenue of appeal is within the agency. But let's say grandma does not get relief within the agency. Only then can she appeal to a federal court. Only because Congress lets her. Could Congress tomorrow say, sorry grandma, if you lose in the Social Security Administration, you can't appeal anymore? Yes, Congress can because you know what, grandma does not have a right to in the US Constitution?
N. Rodgers: An appeal.
J. Aughenbaugh: Disability check.
N. Rodgers: Right.
J. Aughenbaugh: This is again an example of Congress giveth and Congress could take away.
N. Rodgers: Okay.
J. Aughenbaugh: By the way, not for nothing, there's a well known Supreme Court President from 1869 Ex parte McCardle, where the United States Supreme Court said, yes, Congress can change the appellate jurisdiction of the federal courts based on statutory law, not constitutional law, but laws passed by Congress. By the way, this is an example of separate but shared powers. Because Congress gets to go ahead and partially control what the executive branch does and what the judicial branch does. Just like the Fourth Circuit Court of Appeals issuing injunctions and stays to the EPA permitting process was an example of separate but shared powers. The institutions are talking with one another quite a bit with this MVP.
N. Rodgers: But they're being crabby. They're talking to each other in a super crabby way. Also the use of the shadow docket plays out here, in part because the lower courts are being crabby. The Supremes like to stay out of stuff. For the most part, they opt out. They get 10 trillion cases a year and they hear 70 of them. They opt out way more than they opt in. But when they opt in, what court watchers look for is.
J. Aughenbaugh: Why did they opt in?
N. Rodgers: Exactly. What's the controlling precedent or what is it they're trying to establish here? Often it is the spanking of the lower court.
J. Aughenbaugh: The court's use of the shadow docket has been criticized, particularly because there's been an increased use of the shadow docket. But as I pointed out in a previous podcast episode, Nia, one of the reasons why the number of cases on this shadow docket has increased, is that the Supreme Court is dealing with lower courts who are issuing rulings that are just.
N. Rodgers: Nuts.
J. Aughenbaugh: I was going to say less than credible, but nuts works crazy. We're here just like, what were they thinking? They were practically begging the Supreme Court, and by the way, the Supreme Court on their annual summer furlough, and by the way, the vote was 9-0 on the Supreme Court. Not even the liberals on this court were willing to go ahead and say, Fourth Circuit, why you're doing this? Fine. No, it wasn't fine. Congress passed a law, the Fourth circuit didn't like it, and the Fourth Circuit basically acted like the law did not exist.
N. Rodgers: No. You cannot just pretend that 535 people didn't vote on something.
J. Aughenbaugh: Of all the times we and others have been critical of the United States Congress of recent vintage.
N. Rodgers: For freaking heck, they did something. Don't ignore that. That sets a bad message, doesn't it? When you do things, we're going to overturn them. Then why the heck should I bother? There's some real reinforcement there bad that happened. But anyway, where's the president coming in? Is he in this mix at all?
J. Aughenbaugh: To me this is pretty fascinating. Because the MVP, the construction. The EPA in two different presidential administrations was getting a pass.
N. Rodgers: The EPA just was like, sure, go ahead.
J. Aughenbaugh: This is where some of the blame needs to be put on the EPA in both the Trump and Biden administration.
N. Rodgers: Doesn't it seem weird that the EPA wasn't more up in arms about, wait, won't this make things gross and polluted and bad?
J. Aughenbaugh: Then in one sense, I understood it when it was the Trump administration EPA. Because Trump was [inaudible] .
N. Rodgers: Fewer regulations.
J. Aughenbaugh: Fewer regs and he was also pro-fossil fuel. Openly skeptical about clean energy. But that's not the case with the Biden administration. But what's underlying all of this Nia, is the actions, the preferences, the policy preferences of one rather important senator.
N. Rodgers: Are you talking about the other Uncle Joe?
J. Aughenbaugh: Yes.
N. Rodgers: The one with the boat? The party boat.
J. Aughenbaugh: Senator Joe Manchin.
N. Rodgers: I'm telling you he has a party boat, it's a whole thing. He talked about it one time about his wild parties.
J. Aughenbaugh: That's docked somewhere in the Potomac or on the Potomac.
N. Rodgers: Apparently it's known as a good time. During COVID he had parties even though people were supposed to stay more than six feet from each other. Nope.
J. Aughenbaugh: Listeners, neither Nia nor I have received invites.
N. Rodgers: I was just going to say we'll never be invited. It's not that we haven't yet, it's that we never will be invited.
J. Aughenbaugh: Never will be.
N. Rodgers: I may actually be president in the United States and still not invited to be on that boat.
J. Aughenbaugh: You might be wondering, Senator Joe Manchin, a Democrat from West Virginia.
N. Rodgers: Right there. That sentence that you just said is weird.
J. Aughenbaugh: It is weird.
N. Rodgers: A Democrat from West Virginia.
J. Aughenbaugh: Because increasingly, West Virginia has become overwhelmingly Republican.
N. Rodgers: Very red.
J. Aughenbaugh: Most of the statewide elected officials in West Virginia are Republicans, Donald Trump, when he ran.
N. Rodgers: Carried by about 7,000%. I don't know that Joe Biden got any votes in West Virginia. If he did it was very few.
J. Aughenbaugh: Manchin in a pretty awkward position. He's the lone Democrat in a state that's Republican and he's up for re-election in 2024. His vote in regards to the debt ceiling negotiation, the Fiscal Responsibility Act was extremely important. Because pretty much every Republican in the Senate indicated that they weren't going to vote for the debt ceiling deal, so he was in a position of leverage.
N. Rodgers: You know what happens when there's leverage in Congress? Pork is what happens. Whenever anybody has leverage, what they say is, what are you going to do for me? What have you done for me lately? I'm telling you, Joe Manchin has sat in a very sweet spot for quite a while with that leverage, with that piece of leverage that they needed him and they needed his vote. I don't know how long that can go on. The demographics are changing anyway. If they don't need his vote next time because Republicans control the Senate, then Joe Manchin, all this stuff that he's gotten, will just go poof and that will be that.
J. Aughenbaugh: In many ways, the Senate during the entirety of the Biden administration, being so closely divided, has put him in the proverbial catbird seat where everybody has to pay attention to him. If he feels like he's been slighted at all, he has out sized influence. He used it in this particular instance, where he sent a very clear message that the delays for the MVP had to end, and that the jurisdiction on any outstanding appeals would be shifted from the Fourth Circuit to the DC Circuit Court of Appeals. I don't know if this will ultimately benefit him if he decides to run for re-election.
N. Rodgers: [inaudible].
J. Aughenbaugh: As we are recording the previous week, Mansion gave an interview with local West Virginia newspaper where he went ahead and said that he hasn't rolled out running as an independent for the presidency in 2024.
N. Rodgers: Really?
J. Aughenbaugh: Yes.
N. Rodgers: That would be interesting. For listeners, we are going to do a whole bunch of stuff next year about the election, all things lined up. That would certainly be interesting. There'd be a lot of people who would vote for him. He's much younger than either of the two likely front runner candidates. Well, I don't know that Biden has an opponent. Trump has several opponents currently. But he's far and ahead of them in terms of polls and stuff. I think Biden, if there is an opponent out there, Biden isn't being touched by them yet. I want to hear Aughie curse. I'm going to ask him a question. For listeners, we're sorry, the language is about to get just a little bit salty, so you might want to take a break from us for a minute here. But what's going to happen to the private property owners with the MVP?
J. Aughenbaugh: They got screwed. They got screwed in the worst way. Their state screwed them because not only does the EPA have a permitting process, but so do the states and none of the states back them. The state screwed them, the EPA screwed them, Congress screwed them, and then the court screwed them because there are property owners in all three states who don't want the pipeline to run on their property.
N. Rodgers: I'm not even talking about eminent domain, because in some instances they're not asked to give up the entire property. It would actually literally run through the real property.
J. Aughenbaugh: That's right.
N. Rodgers: They don't know whether that's going to hurt their property, their crops, their animals.
J. Aughenbaugh: In many instances, they oppose the pipeline, not because they're environmentalists. They just don't want their property to be violated, to be used by somebody else. They just like their property. They like it intact. They don't like it to be violated.
N. Rodgers: I had a question for you about that and you may not know the answer. But so let's just say that you have Aughenbaugh Farms in Virginia and you have lots of happy chickens running around, chickens everywhere and you do them in that field way where they're not in a big barn or whatever.
J. Aughenbaugh: They're just frolicking about.
N. Rodgers: They're chicken frolicking. You get old and you're like, I don't want to be a chicken farmer anymore. I want to move to the beach and stick my feet in the sand. You want to sell your property to me. I want to be a chicken farmer. Can you sell your property if there is a federal pipeline going through it?
J. Aughenbaugh: I could sell it. But there would be language in the transfer of the deed that certain property of mine is now the legal possession of, say for instance, the MVP. Yes.
N. Rodgers: You would basically be selling me the land on either side of that pipeline?
J. Aughenbaugh: Yes.
N. Rodgers: But I couldn't then buy the land and say, I don't want this ugly pipeline on my land and do anything to it.
J. Aughenbaugh: It's already been taken. Yes. Again, that's part of the issue. Because for some of these families, as you pointed out earlier in the podcast, this property has been within their family for generations.
N. Rodgers: Also, I'm not likely to buy a farm that's divided by a pipeline if I can buy a farm that is not divided by a pipeline. That's the other thing is it's going to alter the straight up value of the value of that property.
J. Aughenbaugh: That's right.
N. Rodgers: Because unless you put it at the edge of my property and my property is now divided, I'd probably have to sell it in two parcels.
J. Aughenbaugh: At least two parcels. That's part of the argument that property owners have made and has been largely rejected by the courts that even if it's only a part of their property, or even if only certain uses of their property are limited, it's effectively been taken because they can't enjoy it to the full like they intended either when they bought or when it was handed down.
N. Rodgers: Similar to people who have farms at the southern border. Half their farm is in Mexico and half their farm is in Texas. Selling that is impossible.
J. Aughenbaugh: Yes, it is impossible because you have two.
N. Rodgers: There is an argument to be made there in terms of property ownership. If you think that life, liberty, and property are the most important values, I don't know how the founders would feel about this. That's an interesting question. Because they would say, on one side you have the common good of more energy. We know that more energy does in some ways good things. It allows for crops, it allows for travel, it allows for all stuff. But by the flip of that, a man's property is all he has in the world. For many of the founders, they would have seen that as a sacred for trust.
J. Aughenbaugh: The locking notion of property. Property was the most important of those three that you just mentioned. Life, liberty and property. Property was.
N. Rodgers: You could pass it on.
J. Aughenbaugh: Yeah, you could pass it on. As he pointed out, it gives you potentially the most significant fulfillment of who you are as a person.
N. Rodgers: They also in their time gave you the right to vote.
J. Aughenbaugh: Yes.
N. Rodgers: Voting was about property ownership.
J. Aughenbaugh: These were all significant reasons why you valued property more than life and liberty because your life and your liberty would not mean as much if you didn't have property. We're now into the 21st century, and many Americans the idea of owning property is a pipe dream because they can't afford it, and interest rates are going up, etc, and they're like, "What's the big deal about property?" Well, you got to go back into the country's history, but property is extremely important.
N. Rodgers: As we mentioned before, for some families, it's all they have.
J. Aughenbaugh: Sure.
N. Rodgers: That's the legacy. That's the legacy that you give your kids. If you can't provide that for your children, there's a whole social potential breakdown there.
J. Aughenbaugh: Yes, and again, for our listeners who are not from rural parts of the United States, their conception or the importance of property-
N. Rodgers: Off the chart.
J. Aughenbaugh: Yeah, socially, economically, politically.
N. Rodgers: There have been towns going to war over a foot of property.
J. Aughenbaugh: Yes.
N. Rodgers: "That sign is on my property." "No, it's on my property." Things people will say and do to each other over a quarter acre of land is amazing.
J. Aughenbaugh: Listeners, Nia has heard me tell this story off recording. But I grew up in a small town in upstate Pennsylvania. My mom's house and property is located on what now the EPA calls a floodplain. But it wasn't a floodplain when she bought the house and the property. It was remarkable when in the '80s the EPA wanted to reclassify that neighborhood as a floodplain, because it would place restrictions on what people could do with their property.
N. Rodgers: In many instances, you can't sell.
J. Aughenbaugh: Yes, and it was remarkable, Nia, the way it brought together people who for in some cases decades hated one another, never talked to one another, but now they had a common enemy.
N. Rodgers: I was going to say the EPA can often make themselves a common enemy.
J. Aughenbaugh: Right.
N. Rodgers: Because you get activists in bed with people who normally they wouldn't even talk to.
J. Aughenbaugh: They would walk on the other side of the street because they didn't like them.
N. Rodgers: Right.
J. Aughenbaugh: The situation didn't get resolved until the Army Reserve; the Army Reserve has ability, and the Army Reserve just stepped in and said, okay, we can't abide by those restrictions for a floodplain, and then all of a sudden the EPA was just like, okay, well, I guess we're not going to do that.
N. Rodgers: It's like it's not really a flood plain. Good luck with the water.
J. Aughenbaugh: But this is really confusing, because a lot of people when they saw what the Supreme Court did in this case, they immediately was just like, the Supreme Court stepped in, and the Congress is picking and I'm like, yeah, on the surface it looks that way, but also remember this is the modern administrative state.
N. Rodgers: I was going to say, this is your dream. This thing is the thing that you and your people, and by people I mean public law scholars.
J. Aughenbaugh: Yes. We're like, "Oh wow."
N. Rodgers: You dream about these things, like oh, this is so complicated, it will take years to unwind.
J. Aughenbaugh: In listeners postscript, as we are concluding this episode postscript, the week we are recording, the Fourth Circuit Court of Appeals handed down a decision this week where they responding to a motion from the MVP backers to conclude all litigation within the Fourth Circuit, the Fourth Circuit went ahead and dismissed all the challenges. But all three of the judges on the panel wrote opinions where they criticized the United States Congress. They just couldn't resist getting in that one last-
N. Rodgers: One last jab. You can move out of our jurisdiction, but we're going to have something to say about it.
J. Aughenbaugh: It was phenomenal. I'm reading and I'm like, "Oh wow, you guys just couldn't resist." Again, this is how people in high government positions, this is how they argue with one another. This is
how the institutions are just like, "okay, you guys won this one, but we just want to go ahead and tell you we didn't like it, and don't be doing this again."
N. Rodgers: Right, don't make me come over there.
J. Aughenbaugh: Yeah, don't make me stop this car.
N. Rodgers: In some instances, do you remember Monty Python and the Holy Grail?
J. Aughenbaugh: Yes.
N. Rodgers: At one point an arrow goes shonk into the guy's chest and it's got a note on it, and he says, "Message for you sir," because he's dying as he's falling over. It feels a little like that.
J. Aughenbaugh: Yeah.
N. Rodgers: Shonk, if like they had to shoot off one last arrow, they had to get one last fuselage in there of okay, but just so you know, we're not happy about it. We figured you weren't happy about it. It brings me back to the beginning of this episode, no one here is happy.
J. Aughenbaugh: Yeah, nobody. Not yet, no.
N. Rodgers: EPA is not happy, the owners are not happy, MVP is not happy, but neither Court is happy, Congress is not happy, Biden is not happy. There's no one who thinks, well, this was a great idea, we should do this again.
J. Aughenbaugh: You imagine how unhappy the justices were that they had to interrupt their summer vacation?
N. Rodgers: What did you do on summer vacation? Well, at least they have an essay to write now.
J. Aughenbaugh: Yeah, can you imagine John Roberts?
N. Rodgers: Okay, everybody.
J. Aughenbaugh: Damn, we just concluded a term that extracted a heavy price. I'm sorry guys. It's like a department chair saying, "I'm sorry guys, but this is an important matter and we're going to have to meet on Friday afternoon."
N. Rodgers: Right, and everybody going, "You got to be kidding. By Friday afternoon all I want is a beer and for you to stop talking." As we go, I like to make note of the fact that this was a 9-0 ruling.
J. Aughenbaugh: Yes.
N. Rodgers: It brings us back again to the statement that Aughie and I live by which is this Court isn't nearly as divided as the media would have you believe.
J. Aughenbaugh: No, it isn't.
N. Rodgers: While some of the cases are divided, a huge number of them come out straight up 9-0.
J. Aughenbaugh: 9-0. In this past Supreme Court term, well over 40% of the cases were 9-0 or 8-1.
N. Rodgers: Yeah. Justice Thomas being crabby.
J. Aughenbaugh: Or Alito, but again listeners, think about if you've worked in small groups.
N. Rodgers: Getting this much agreement all the time.
J. Aughenbaugh: Yeah.
N. Rodgers: It's not as bad as they say it is.
J. Aughenbaugh: Yeah, Nia and I work for a university. If we walk out of a departmental meeting where the vote was-
N. Rodgers: With agreement.
J. Aughenbaugh: Yeah, with any agreement. We're like, "Wow, that was a good meeting."
N. Rodgers: Exactly. We're like, "Hey, we got in the hang of this." Then we come back to the next one and we get told, no we don't.
J. Aughenbaugh: No, we don't.
N. Rodgers: We don't have the hang of this.
J. Aughenbaugh: Then there's one group often one side.
N. Rodgers: Libraries, we're pretty collaborative and we're pretty 9-0 most of the time. Like what I think of as agreeing and stuff.
J. Aughenbaugh: Yeah.
N. Rodgers: But even we don't have this record. They're doing pretty well. I just wanted to note that for the record-
J. Aughenbaugh: Yeah.
N. Rodgers: -even though this is a hugely messy bunch of-
J. Aughenbaugh: Case facts. The case facts here, Nia is correct. If you're a public law scholar and you're sitting around with a bunch of other folks at a public law conference over drinks-
N. Rodgers: We're going to need another bottle of wine. We've got more to talk about.
J. Aughenbaugh: Yeah.
N. Rodgers: This thing's going to go all night. Somebody better order some pizza.
J. Aughenbaugh: Is that right?
N. Rodgers: Isn't that what they used to say about the White House, they knew they were working on important stuff when you'd see the pizza delivery trucks, because they were up all night?
J. Aughenbaugh: Yeah.
N. Rodgers: But thank you, Aughie. Well, it makes me a little sad that it's made everybody angry.
J. Aughenbaugh: Yeah.
N. Rodgers: That it's frustrated everybody, but there's a part of me that thinks, yeah, but this is how government actually gets stuff done. You keep fighting about it until an answer is arrived at, and the answer here is the DC Court of Appeals because Congress has the right to do that.
J. Aughenbaugh: Yeah.
N. Rodgers: The Fourth Circuit has to sit down and be quiet.
J. Aughenbaugh: Yes.
N. Rodgers: Well, they don't have to be quiet, but they have to sit down. I don't know, I think this was an instance of it working.
J. Aughenbaugh: Yeah, it's true.
N. Rodgers: This an instance of it working the way it's supposed to work.
J. Aughenbaugh: This reminds me, as we conclude the episode, of when I was a much younger person, I was a bartender and we would get to closing time. I would say to-
N. Rodgers: You don't have to go home, but you can't stay here.
J. Aughenbaugh: Right. That's basically what was said to the Fourth Circuit Court of Appeals.
N. Rodgers: You don't have to do anything but you're not part of this.
J. Aughenbaugh: That's right. You don't have to go home, you just can't stay here.
N. Rodgers: Oh, man.
J. Aughenbaugh: There would be that butterfly at the corner, you'd would be like, "But where am I going to go?" I'm like, "I don't know." This was pre-Uber and I'd be like, "And I can call you a taxi."
N. Rodgers: Right.
J. Aughenbaugh: Anyways Nia, thank you.
N. Rodgers: Thank you, Aughie. This has been excellent.
J. Aughenbaugh: Thank you. Bye.
You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.