The 4th Circuit Stays Construction of the Mountain Valley Pipeline — A Lesson in Preventing a Fait Accompli

Earlier this week, the 4th Circuit Court of Appeals stayed construction of the Mountain Valley Pipeline.  The Court did so with a two-sentence order stating that an opinion would follow.  The order was issued hours after oral argument.  Why the hurry?

It could be that, as reported by Bloomberg (subscription required), the plaintiffs had somehow learned of “a call in which pipeline officials told investors they would quickly trench through streams ‘before anything is challenged.’”

Ever since Robert Caro’s biography of Robert Moses, the general public has understood the concept of “digging stakes” – the idea that a project may be impossible to stop if the developer gets shovels in the ground before the opposition can obtain a judicial decision on the legality of the project.

My advice to project developers is that the concept of digging stakes doesn’t work as well if the opponents and the courts learn of your strategy before you are actually able to get those stakes in the ground.