Implications of the JetBlue/Spirit Merger Blocking

By: Dominic Miranda

Edited by: Clark Mahoney and Connor Tooman

In March of 2023, a civil antitrust lawsuit was filed by several states and the United States Department of Justice (DOJ), including California, New York, Maryland, and Massachusetts, along with the District of Columbia, to prevent Spirit Airlines from merging with JetBlue Airways Corporation.[1] The lawsuit, intended to block the $3.8 billion deal, was filed in the Massachusetts District Court, with consumer protection as the primary reasoning.[2] A trial was initiated later in October, in which both sides pleaded their cases for 17 days.[2] The judge in this case faced an economic dilemma since the airlines in question have valid arguments to consider. However, on January 16th, 2024, JetBlue’s intended acquisition of Spirit Airlines was found to be unlawful and blocked by the U.S. District Court for the District of Massachusetts, citing the probability of “anticompetitive harm”  in the form of an increase in fares that would result from the merger.[2] The overall goal of the Antitrust Division of the DOJ is to preserve the integrity of the economy, and they overlook all potential airline mergers. In this case, they believe that allowing this merger to go through would be a net negative for the US economy, so this article will investigate whether this harm is likely to manifest, as well as what comes next for these airlines. 

According to the Federal Aviation Administration (FAA), “a merger combines all aspects of two airlines’ operations into a new entity under a single operating certificate”, and it is their job to award this certificate based on safety standards.[3] JetBlue sought a merger with Spirit Airlines to improve its standing in the aviation industry, which many other airlines have done and will try to do with these procedures. The merging of airlines is not uncommon in the United States, as it has had 7 successful purchases in the industry within the last 8 years, with the most notable being the purchase of Virgin America by Alaska Airlines.[4] This leads many to question the Massachusetts District Court’s decision by asking “What’s different about this one?”

In the recent past, major players in the aviation industry like American Airlines, United, Delta, and others have been involved in mergers and acquisitions.[4] For the most part, the intent is to help with expanding their company in different ways, like their fleet, number of pilots, employees, or occupied airport gates. According to Khezrimotlagh et al., “There are two views in the literature to address airline mergers’ drives: efficiency gains and market power gains”.[5] In their study, they compared major US airlines pre and post-merger in terms of their technical efficiency, which was decomposed into the production efficiency and consumption efficiency.[5] It was found that for four major US airlines (Delta, Southwest, American, and United), their production and consumption efficiency scores increased post-merger across the board, with the consumption efficiency being more substantial.[5] This indicates a successful economic merger from these airlines’ point of view. From the recent track record, it appears that well-planned and executed mergers or acquisitions can have a beneficial effect on the health of major airlines in the US, and can be shrewd business decisions. Airlines have a great incentive to participate in a merger of sorts, and airlines’ defense of mergers will likely include the claim that the improved efficiencies will benefit the consumers in the long run. 

Additionally, Spirit Airlines is looking to push through its own financial struggles. Spirit has “lost more than $1.6 billion” since 2019, and Bank of America analysts are predicting that the Spirit stock will “underperform,” which suggests “there is a risk the airline might not be able to make debt payments due in September 2025”.[6] Spirit having lost money over the past four years is detrimental for the airline. They seem to be struggling to return back to pre-pandemic levels of consumption, which can give us clues as to why they intend to sell their assets. Spirit’s share prices were down 15-16% on Friday, January 26th, reflecting the lack of confidence that investors have in Spirit as its own entity.[7] By selling the Spirit fleet, employees, and gates to JetBlue, they are cutting their losses and shifting the management onto JetBlue. Now, without the possibility of a merger, there is a chance that Spirit will go bankrupt and the market will lose out on the assets that they bring to consumers. The airlines’ counsel would likely use this to point out that in the event Spirit’s assets exit the market, it would be even worse for competition and the consumer than an acquisition. This may be the only way for the assets to be salvaged. 

Before analyzing the impact on competitors’ prices that a merger between JetBlue and Spirit would have,  one should look at the results that past mergers have had on fares. In a study conducted by Haobie Fan on the 2010 United-Continental merger, “the results of price effects indicate that merging firms and rivals respond differently to the merger in … three types of markets, hub markets, leisure markets, and big-city markets”.[8] Essentially, the effect that this merger had on prices was too varied to conclude a directional relationship. The companies involved touting that “economic analysis shows that JetBlue’s presence on a nonstop route decreases legacy fares by ~16%”, indicating that the change could keep fares low.[9] Despite this, statistics like these should be taken with a grain of salt, as they were likely found in an airline-sponsored study. Another study by Das concluded that “the merger between American and US Airways has been beneficial to the consumers in terms of lower average prices in the larger markets.”[10] These examples seem to indicate that a major airline merger will not always lead to increased fares, which can negate the potential anticompetitive harm mentioned by the Massachusetts judge. 

As of Friday, January 26th, JetBlue and Spirit were looking to appeal the judge’s decision, but JetBlue is currently threatening to terminate the deal due to disagreements on terms, forcing them to pay Spirit $470 million in termination fees.[11] Although the terms of the contract included a clause to pursue an appeal, the likelihood of an appeal passing is quite low according to experts.[6] Furthermore, the DOJ had already blocked a partnership between American Airlines and JetBlue in the US northeast, where they would agree to avoid each other in major markets, with the DOJ taking this as a clear violation of their antitrust stance.[12] According to some, these serve as indicators that the near future of mergers is looking dim, with “Deutsche Bank analyst Michael Linenberg [saying] the government’s success in blocking [both deals] ‘are likely to cast a shadow over future airline (merger and acquisition) activity’.”[6] Airlines that are still reeling from the pandemic may face even more difficulties completing mergers intended to recoup their losses. For instance, although it is not entirely certain what the DOJ will do, Alaska and Hawaiian Airlines should brace for legal hurdles of their own with their intended merger based on recent rulings.[6] The recent wave of antitrust lawsuits is part of a concerted effort by the current Biden administration, and the survivability of deals like these likely depends on who is in charge, given that the president appoints the head of the DOJ, the attorney general.

Notes:

  1. U.S. Department of Justice Office of Public Affairs. “Justice Department Sues to Block JetBlue’s Proposed Acquisition of Spirit.” Last updated March 7, 2023. https://www.justice.gov/opa/pr/justice-department-sues-block-jetblue-s-proposed-acquisition-spirit.

  2. U.S. Department of Justice Office of Public Affairs. “Justice Department Statements on District Court Decision to Block JetBlue’s Acquisition of Spirit Airlines.” January 16, 2024. https://www.justice.gov/opa/pr/justice-department-statements-district-court-decision-block-jetblues-acquisition-spirit.

  3. Federal Aviation Administration. “How Does That Work? The FAA’s Safety Role in Airline Mergers.” Accessed January 28, 2024. https://www.faa.gov/newsroom/how-does-work-faas-safety-role-airline-mergers.

  4. Airlines For America. “U.S. Airline Mergers and Acquisitions.” Accessed January 28, 2024. https://www.airlines.org/dataset/u-s-airline-mergers-and-acquisitions/.

  5. Khezrimotlagh, Dariush, Sepideh Kaffash, and Joe Zhu. “U.S. Airline Mergers’ Performance and Productivity Change.” Journal of Air Transport Management, May 9, 2022. https://www.sciencedirect.com/science/article/pii/S0969699722000473#sec4.

  6. Koenig, David, and The Associated Press. “JetBlue’s Failed $3.8 Billion Merger Could Send Spirit Airlines into Bankruptcy, Wall Street Analysts Warn.” Fortune, January 18, 2024. https://fortune.com/2024/01/18/will-spirit-airlines-go-bankrupt-chapter-11-jetblue-merger/.

  7. Sider, Allison. “JetBlue Warns It Might Scrap Spirit Airlines Takeover next Week after Merger Block.” Wall Street Journal, January 26, 2024. https://www.wsj.com/business/airlines/jetblue-warns-it-might-scrap-spirit-airlines-takeover-next-week-after-merger-block-9bd6bd25.

  8. Fan, Haobin. “When Consumer Type Matters: Price Effects of the United-Continental Merger in the Airline Industry.” Economics of Transportation, February 12, 2020. https://www.sciencedirect.com/science/article/pii/S2212012219300875#sec5.

  9. JetBlue + Spirit. “The Best of Both Airlines.” April 13, 2023. https://lowfaresgreatservice.com/.

  10. Das, Somnath. “Effect of Merger on Market Price and Product Quality: American and US Airways.” Review of Industrial Organization 55, no. 3 (July 10, 2019): 339–74. https://doi.org/10.1007/s11151-019-09717-2.

  11. AP News. “JetBlue Tells Spirit Airlines That It May Terminate Its $3.8 Billion Buyout Offer Challenged by US.” January 26, 2024. https://apnews.com/article/spirit-airlines-jetblue-merger-warning-2d34827417dfaab8dd781d9671293fca.

  12. Koenig, David. “American Airlines and JetBlue Must Abandon Their Partnership in the Northeast, Federal Judge Rules.” AP News, June 21, 2023. https://apnews.com/article/airlines-american-jetblue-antitrust-competition-04516894671f1f44461ffaa76663dbf0.

Bibliography:

Airlines For America. “U.S. Airline Mergers and Acquisitions.” Accessed January 28, 2024. https://www.airlines.org/dataset/u-s-airline-mergers-and-acquisitions/.

AP News. “JetBlue Tells Spirit Airlines That It May Terminate Its $3.8 Billion Buyout Offer Challenged by US.” January 26, 2024. https://apnews.com/article/spirit-airlines-jetblue-merger-warning-2d34827417dfaab8dd781d9671293fca.

Das, Somnath. “Effect of Merger on Market Price and Product Quality: American and US Airways.” Review of Industrial Organization 55, no. 3 (July 10, 2019): 339–74. https://doi.org/10.1007/s11151-019-09717-2.

Fan, Haobin. “When Consumer Type Matters: Price Effects of the United-Continental Merger in the Airline Industry.” Economics of Transportation, February 12, 2020. https://www.sciencedirect.com/science/article/pii/S2212012219300875#sec5.

Federal Aviation Administration. “How Does That Work? The FAA’s Safety Role in Airline Mergers.” Accessed January 28, 2024. https://www.faa.gov/newsroom/how-does-work-faas-safety-role-airline-mergers.

JetBlue + Spirit. “The Best of Both Airlines.” April 13, 2023. https://lowfaresgreatservice.com/.

Khezrimotlagh, Dariush, Sepideh Kaffash, and Joe Zhu. “U.S. Airline Mergers’ Performance and Productivity Change.” Journal of Air Transport Management, May 9, 2022. https://www.sciencedirect.com/science/article/pii/S0969699722000473#sec4.

Koenig, David. “American Airlines and JetBlue Must Abandon Their Partnership in the Northeast, Federal Judge Rules.” AP News, June 21, 2023. https://apnews.com/article/airlines-american-jetblue-antitrust-competition-04516894671f1f44461ffaa76663dbf0.

Koenig, David, and The Associated Press. “JetBlue’s Failed $3.8 Billion Merger Could Send Spirit Airlines into Bankruptcy, Wall Street Analysts Warn.” Fortune, January 18, 2024. https://fortune.com/2024/01/18/will-spirit-airlines-go-bankrupt-chapter-11-jetblue-merger/.

Sider, Allison. “JetBlue Warns It Might Scrap Spirit Airlines Takeover next Week after Merger Block.” Wall Street Journal, January 26, 2024. https://www.wsj.com/business/airlines/jetblue-warns-it-might-scrap-spirit-airlines-takeover-next-week-after-merger-block-9bd6bd25.

U.S. Department of Justice Office of Public Affairs. “Justice Department Statements on District Court Decision to Block JetBlue’s Acquisition of Spirit Airlines.” January 16, 2024. https://www.justice.gov/opa/pr/justice-department-statements-district-court-decision-block-jetblues-acquisition-spirit.

U.S. Department of Justice Office of Public Affairs. “Justice Department Sues to Block JetBlue’s Proposed Acquisition of Spirit.” Last updated March 7, 2023. https://www.justice.gov/opa/pr/justice-department-sues-block-jetblue-s-proposed-acquisition-spirit.

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HIGH SCHOOL ESSAY CONTEST WINNER: First Amendment and Artificial Intelligence: Social Media Regulation

By: Chloe Kim

When debating the political influence of social media, one cannot overlook the pervasive spread of viral misinformation across billions of social media posts. Behind the scenes are the algorithms attempting to censor such powerful, politically motivated content—artificial intelligence programs that can manipulate, suppress, and censor any content at unprecedented speed and accuracy, potentially becoming a covert tool for social engineering. This technology has made the intersection between false information and the First Amendment much more complex. In light of the upcoming 2024 presidential elections, American lawmakers need to reconsider legislation on the role of artificial intelligence in social media regulation.

During the 2020 elections, American democracy fiercely grappled with false information on social media. By weaponizing social media, Russian interference disseminated harmful information, increasing social unrest and political polarization. Social media platforms raced to tackle such interference with content regulation, with Facebook removing about 75,000 posts associated with these accounts. (Gleicher 2019)

In 2024, the threat of misinformation to the integrity of American elections is even more apparent with generative AI, which allows anyone to produce realistic malicious content. Back in January, a fake AI-generated image of Donald Trump sitting next to Jeffrey Epstein on the disgraced financier and sex offender’s private jet went viral on Facebook. The following month, a “Democratic consultant working for a long-shot rival admitted that he commissioned an AI-generated robocall impersonating President Joe Biden that sought to discourage thousands of voters from participating in New Hampshire’s primary.” (Barrett and Hendrix 2024)

Consequently, social media companies are being urged to employ more rigorous measures to combat misinformation. In a call to action, The Global Coalition for Tech Justice criticized tech companies for failing to “implement adequate measures to protect people and democratic processes from tech harms, including disinformation, hate speech, and influence operations that ruin lives and undermine democratic integrity.” (Digital Action 2024) In response, the government and social media companies are developing projects to build an artificial intelligence service that combats false information. As part of 'The Convergence Accelerator Program, Track F was launched by the Biden Administration to effectively "prevent, mitigate, and adapt to critical threats in our communications system," garnering millions in funding. (Convergence Accelerator Office, n.d.)

Under Section 230 of the federal Communications Decency Act, it is entirely constitutional for social media companies to employ such artificial intelligence to regulate content. Section 230 protects online computer services concerning third-party content its users generate. (“47 U.S.C. 230 - Protection for private blocking and screening of offensive material - Content Details - USCODE-2011-title47-chap5-subchapII-partI-sec230”, n.d.) This statute was drafted in the decade of newly developing internet platforms that faced the dilemma between moderating third-party content at risk of being held liable or refusing to moderate third-party content at risk of eroding user experience with obscene content. Section 230 is touted as "the 26 words that made the internet," shielding growing internet corporations from destructive legal ramifications and nurturing them into the giant industry they constitute today. (Kosseff 2019)

However, many fear that Section 230 is unable to keep up with the times—and that the unprecedented advancement of social media and artificial intelligence calls for a potential re-evaluation of the often overlooked sub-clause under Section 230: "to remove disincentives for the development and utilization of blocking and filtering technologies." Current artificial intelligence algorithms are proving inconsistent and inaccurate, interfering with the First Amendment under unreasonable grounds. Without human input, even the world's leading artificial intelligence systems struggle with unintended censorship. Michael J. Abramowitz, president of Freedom House, points out that "AI can be used to supercharge censorship, surveillance, and the creation and spread of disinformation.” (Chandran and Tabary 2023) Artificial intelligence can censor information before it is posted through automated filtering, which poses even more significant risks to the First Amendment as it completely suppresses public discourse. (Simon 2020)

Overall, a valid argument can be made that the vast power of artificial intelligence erodes the core of the First Amendment. According to the libertarian approach, citizens organically adopt a self-regulatory framework known as the "marketplace of ideas" that "[lets] truth and falsity grapple on the open market, and the truth will rise to the top.” (Lenard, Lam, and Kosseff 2023) Rather than empower people to make independent, informed votes, automated censorship may manipulate mass sentiment by arbitrarily restricting access to information. Such criticism of Section 230 has compelled lawmakers to introduce amendments to Section 230. One such case, the Stop the Censorship Act, introduced in 2022, attempts to “limit a social media company's immunity from liability for screening and blocking offensive content on its platform.” (117th Congress)

In the same vein, it is important to recognize that the complex issue of social media censorship is not black and white: the removal or excessive editing of Section 230 would restrict freedom of speech by forcing companies to strictly moderate content in fear of legal responsibility. Although more discussion is needed to fully weigh both perspectives, it is clear that the repercussions of artificial intelligence censorship threaten the First Amendment. "Imagine a world where your word processor prevents you from analyzing, criticizing, lauding, or reporting on a topic deemed 'harmful' by an AI programmed only to process ideas that are 'respectful and appropriate for all.'"

The dangers of false digital information have only been exacerbated by the emergence of artificial intelligence. With the upcoming elections in 2024, American lawmakers must now consider how artificial intelligence has arguably changed the context of Section 230. The future of over 300 million Americans lay in the hands of legislators and how they decide to regulate the use of artificial intelligence in social media algorithms. 


Bibliography:

Barrett, Paul, and Justin Hendrix. 2024. “AI Isn't Our Election Safety Problem, Disinformation Is.” Time. https://time.com/6914961/ai-2024-election-disinformation/.

Chandran, Rina, and Zoe Tabary. 2023. “AI 'supercharges' online disinformation and censorship, report warns.” Reuters. https://www.reuters.com/article/idUSL8N3B53P6/.

Convergence Accelerator Office. n.d. “NSF Convergence Accelerator Phases I and II for the 2021 Cohort.” National Science Foundation. Accessed April 22, 2024. https://nsf-gov-resources.nsf.gov/solicitations/pubs/2021/nsf21572/nsf21572.pdf?VersionId=YB5eK0j6Izanw9fLsDNxxrpz9TF5bhSB.

Digital Action. 2024. Global Coalition for Tech Justice. https://yearofdemocracy.org/a-hundred-days-into-the-elections-megacycle-and-tech-platforms-are-failing-the-biggest-test-of-2024/.

“47 U.S.C. 230 - Protection for private blocking and screening of offensive material - Content Details - USCODE-2011-title47-chap5-subchapII-partI-sec230.” n.d. GovInfo. Accessed April 22, 2024. https://www.govinfo.gov/app/details/USCODE-2011-title47/USCODE-2011-title47-chap5-subchapII-partI-sec230/summary.

Gleicher, Nathaniel. 2019. “Removing More Coordinated Inauthentic Behavior From Iran and Russia.” Meta. https://about.fb.com/news/2019/10/removing-more-coordinated-inauthentic-behavior-from-iran-and-russia/.

Kosseff, Jeff. 2019. The Twenty-Six Words That Created the Internet. N.p.: Cornell University Press.

Lenard, Thomas, Sarah Lam, and Jess Kosseff. 2023. “Freedom of Speech in the Digital Age with Professor Jeff Kosseff - Publications.” The Technology Policy Institute. https://techpolicyinstitute.org/publications/privacy-and-security/freedom-of-speech-in-the-digital-age-with-professor-jeff-kosseff/.

117th Congress. n.d. “H.R.8612.” Congress.gov. Accessed April 22, 2024. https://www.congress.gov/bill/117th-congress/house-bill/8612.

Simon, Eva. 2020. “​Upload Filters Are Back, and We Are Still Strongly Against Them.” Civil Liberties Union for Europe. https://www.liberties.eu/en/stories/uploa-filter-back-eu-2020/18938.

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The Future of Social Media Content Moderation: Starting in Texas and Florida

By: Sari Richmond

Edited by: Valerie Chu and Chloe Shah

As a legal battle that has been brewing for the last few decades comes to a climax, the Supreme Court heard arguments on February 26, 2024, regarding laws passed in Texas and Florida focused on eliminating the ability of social media companies to moderate content.[1] The sentiment that social media companies were unfairly obstructing conservative viewpoints gained traction and was heightened by the banning of former president Trump from some social media sites after the storming of the Capitol on January 6, 2021.[2] After Texas and Florida initially passed these laws eliminating the ability of social media companies to moderate content, NetChoice, an association of technology companies, sued and argued that companies have the right to editorial discretion, or to monitor what is posted on their sites.[1] The main stance of NetChoice and its associated companies, which include Meta (Facebook), Alphabet (Google, Youtube), and Snap (TikTok, Snapchat), is built on the idea that without content moderation, sites like these would be rendered unpleasant and unusable by the spread of hate speech, harassment, spam, and other undesirable experiences for users.[3,4] 

As lawyers arguing in support of the laws expressed that social media companies exercising such discretion could be equated to ‘censorship,’ Paul Clement, a NetChoice lawyer, said that this term could only be applied to government restrictions over speech or publication and that in this circumstance, internet companies were practicing editorial judgment, a right that is protected by the First Amendment.[1] This difference in interpretation of the law is the foundation of all arguments surrounding the case as Supreme Court justices from both ends of the political spectrum weigh different facets of each states’ version of the law. Chief Justice John Roberts posed a question to Florida’s solicitor general about the validity of the state regulating what he describes as the “modern public square,” and another conservative justice, Brett Kavanaugh, noted that previous rulings surrounding similar issues emphasized the protection of editorial control rights by the First Amendment.[3] In a broader sense, the cases against these laws are asking justices to evaluate the validity of editorial discretion by social media companies, and by extension, consider whether the government can effectively force companies to publish and house any type of content.         

Editorial discretion is essentially the right of publishers or a platform to choose what content they display or “print” on their website or paper. Originally applied to newspapers, editorial discretion was the right of a newspaper or printing company to determine what news made it into paper, in what fashion, and to what degree.[5] Andrew Oldham, the Fifth Circuit Court of Appeals judge who ruled in favor of the Texas social media law, points out that the Supreme Court has never in the past utilized editorial discretion as a “special category of First-Amendment-protected expression”.[5] However, as critics of this ruling argued, through observing past precedents set by the Supreme Court and other lower courts, editorial discretion has carved out its own place in judicial rulings. In pivotal cases like CBS v. Democratic Nat’l Committee (1973) and Miami Herald Pub. Co. v. Tornillo (1974), the Court underscored the role of editorial control in free expression. The Court's stance emphasized that government regulation infringing on editorial decision-making would contradict the idea of a free press, erecting editorial discretion as a right protected by the First Amendment. This recognition culminated in Justice Clarence Thomas’s acknowledgment in Denver Area v. FCC (1996) that editorial discretion is fundamentally protected, establishing it as a category of expression preserved under the First Amendment.[5,6] 

While the two laws passed by Florida and Texas are often coupled in the media and are both under scrutiny for almost identical reasons, there are slight differences in the bills that are forcing Justices to consider future implications. For example, Texas’s version of the bill explicitly outlines some platforms exempt from the definition of “social media platform” while Florida’s version of the bill seems to be more vague; there is concern from both sides of the political spectrum that the broad nature of Florida’s bill could encompass a wide range of content that is not limited to “expressive content,” such as regulating platforms like Uber, Etsy, and G-Mail that do not publish content.[1] The Florida version of the law also includes fines, some up to $100,000 for damages in violation of the law, which the Texas version of the bill does not have.[7] Finally, the event that catalyzed the reaction to this issue was former President Trump’s removal from some media sites after January 2021. Texas’s bill attempts to prohibit companies from removing content due to the authors’ viewpoint while Florida’s bill attempts to prohibit companies from removing politicians.[8] It should be noted that the vagueness of Florida's bill and its potential to expand government regulation on editorial discretion to content that is not technically expressive is unexplored, and it is unclear whether editorial discretion in this situation would apply to data, statistics, or other types of information. 

Overall, the lawsuits being brought against Texas and Florida for their bills concerning content regulation by social media companies have brought about critical questions about maintaining the balance between editorial discretion and government oversight. The Supreme Court’s careful analysis of both states’ controversial laws spans the political spectrum and highlights the potential future implication of laws like these. Central to the issue lies the interpretation of editorial discretion as a right under the First Amendment. While proponents of the laws advocate for government intervention to counter perceived censorship by social media platforms, opponents emphasize the importance of preserving the editorial independence of these companies. The Court's examination of past legal precedents adds depth to the current issue. Distinguishing between the Texas and Florida laws reveals differences in scope and enforcement mechanisms that call for the Justices to conclude what might occur if these laws are accepted. The vague nature of Florida’s bill highlights the trend of broad language in lawmaking that allows for strong interpretation and adaptability. Due to the First Amendment’s ambiguous nature in this issue, a final ruling from the Supreme Court on this issue may take longer than usual; however, the resolution will undoubtedly have a massive impact on the way media is used and consumed.

Notes:

  1. Savage, Charlie. 2024. “Takeaways From the Supreme Court Arguments on Social Media Laws.” The New York Times.

  2. Madden, Monica. 2024. “Supreme Court grapples with Texas, Florida social media regulation laws.” KXAN. 

  3. Kruzel, John, Andrew Chung, and Barnes Cellino. 2024. “US Supreme Court torn over Florida, Texas laws regulating social media companies.” Reuters. 

  4. “US Supreme Court Weighs Florida, Texas Laws Regulating Social Media Companies.” 2024. VOA. 

  5. Douek, Evelyn, and Genevieve Lakier. 2022. “Rereading “Editorial Discretion” | Knight First Amendment Institute.” | Knight First Amendment Institute. 

  6. Bamberger, Michael A., and Margaret Jacobs. n.d. “Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996).” Justia US Supreme Court Center.

  7. Macagnone, Michael. 2024. “Supreme Court grapples with state social media content laws.” Roll Call. 

  8. “U.S. Supreme Court to weigh in on Texas social media law.” 2024. The Texas Tribune. https://www.texastribune.org/2024/02/26/texas-social-media-law-supreme-court/.

Bibliography:

Bamberger, Michael A., and Margaret Jacobs. n.d. “Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996).” Justia US Supreme Court Center. https://supreme.justia.com/cases/federal/us/518/727/.

Douek, Evelyn, and Genevieve Lakier. 2022. “Rereading “Editorial Discretion” | Knight First Amendment Institute.” | Knight First Amendment Institute. https://knightcolumbia.org/blog/rereading-editorial-discretion.

Kruzel, John, Andrew Chung, and Barnes Cellino. 2024. “US Supreme Court torn over Florida, Texas laws regulating social media companies.” Reuters. https://www.reuters.com/legal/us-supreme-court-weigh-florida-texas-laws-constraining-social-media-companies-2024-02-26/.

Macagnone, Michael. 2024. “Supreme Court grapples with state social media content laws.” Roll Call. https://rollcall.com/2024/02/26/supreme-court-grapples-with-state-social-media-content-laws/.

Madden, Monica. 2024. “Supreme Court grapples with Texas, Florida social media regulation laws.” KXAN. https://www.kxan.com/news/us-politics/supreme-court-grapples-with-texas-florida-social-media-regulation-laws/.

Savage, Charlie. 2024. “Takeaways From the Supreme Court Arguments on Social Media Laws.” The New York Times. https://www.nytimes.com/2024/02/26/us/politics/supreme-court-social-media-takeaways.html.

“U.S. Supreme Court to weigh in on Texas social media law.” 2024. The Texas Tribune. https://www.texastribune.org/2024/02/26/texas-social-media-law-supreme-court/.

“US Supreme Court Weighs Florida, Texas Laws Regulating Social Media Companies.” 2024. VOA. https://www.voanews.com/a/us-supreme-court-weighs-florida-texas-laws-regulating-social-media-companies-/7502962.html.

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How the Mountain Valley Pipeline has Continued to Survive its Legal Troubles

By: Dominic Miranda

Edited by: Sarah Wachs and olivia Paik

The Mountain Valley Pipeline (MVP) by Mountain Valley Pipeline LLC is a developing 303-mile-long natural gas pipeline that will operate from northwestern West Virginia to southern Virginia. [1] The Federal Energy Regulatory Commission (FERC) is the primary regulatory body of the pipeline because it crosses state lines. [2] The LLC also later reached an agreement with the FERC to add a 75-mile extension south that extends into central North Carolina, called “Southgate.”[3] Construction for the main segment of the pipeline began in 2018 upon receiving authorization under the 1938 Natural Gas Act and receiving its Certificate of Convenience and Necessity from the FERC. [4] Since the project’s proposal, activists concerned with potential environmental harm have heavily scrutinized and challenged the LLC and the FERC, while numerous fines were levied against the LLC for various violations. 

Some early examples of such obstacles to the project’s completion are the array of permit violations found at their facilities through several inspections made by West Virginia’s Department of Environmental Protection (WVDEP) in 2018. [5] Many of the infractions were categorized as a failure to uphold sanitation or safety standards including “land disturbances,” failing to “prevent sediment-laden water from leaving the station,” and “improperly installing water bars/slope breakers.” [6] Despite not following many of the terms and conditions of their permit, they were allowed to continue on with the project by paying these fines and meeting even more criteria to ensure they would uphold the required sanitation standards. However, after bearing witness to the environmental impact of the mainline construction in 2020, North Carolina decided to not award a water permit to the MVP developers. Moreover, North Carolina reissued their decision after the LLC appealed, with the United States Court of Appeals for the Fourth Circuit affirming the decision. [7]

Even before the LLC received construction permits and licenses in 2017, they encountered plenty of legal challenges, but successfully escaped. MVP faced a constitutional challenge from landowners, labeled as Berkeley, who claimed that the FERC’s decision to grant them eminent domain through the Natural Gas Act and a Certificate of Public Convenience and Necessity violated the 5th amendment, citing insufficiently administered tests in order to confirm a public purpose for the project. [8] A U.S. District Court denied the motion for an injunction on the construction of the project on the grounds that this Court did not have jurisdiction, which an appellate court affirmed and for which the Supreme Court refused to grant a writ of certiorari. [9] Similar cases from around this time include Sierra Club v. U.S. Army Corps of Engineers, Bold Alliance et al. v. FERC et al., Mountain Valley Pipeline, LLC v. Simmons et al., and Mountain Valley Pipeline, LLC v. Easements; in each of these cases, the MVP LLC had an involvement in claims against their right to use others’ property for construction, but in the end, were able to exercise eminent domain successfully. [10] The common idea is that many of the property owners refused to give up their land and either the MVP LLC or the property owners took it to the courts to sort out the disagreement. However, as of 2020, all of these cases were settled with various federal courts affirming FERC’s authority to grant MVP eminent domain, citing that they pass tests like the Winter four-pronged test which proves that MVP project essentially provide enough of a public benefit when given access to this land and are significantly harmed when not. [11] The courts mostly took this project as a public good; they felt that the MVP project adequately fulfilled these requirements to be considered viable and that giving them access to these properties was essential to provide the public with access to the gas. The LLC has done everything in their power to prove that the pipeline is something that is in the best interest of the public, and this has likely contributed to their continued survival.

In 2022, West Virginia senator Joe Manchin reached an agreement with Congress to make preliminary provisions for a bill to “[streamline the] process for authorizations and reviews of energy and natural resources projects.” [12] This act is part of the government’s energy independence and inflation reduction movement. [13] The intention was to lower energy costs by allowing natural gas to reach eastern coastal states in the US and reduce reliance on foreign trade. Enacting a law like this sends a message to the activists and challengers that the government is on the side of MVP, and lawsuits will likely receive some political backlash and heavy pressure from the opposition, potentially dissuading groups from suing MVP. 

Last year, the LLC seemed to have secured its most significant win yet through the official congressional approval of its project and support intended to close the book on all further legal challenges. In June of 2023, President Biden signed the Fiscal Responsibility Act of 2023, which contains clauses in direct and explicit support of the pipeline in its section 324. [14] The act essentially serves as a shield from any further litigation, as it directs jurisdiction to the U.S. Court of Appeals for the District of Columbia Circuit for any claims made about the section since it “‘ratifies and approves all authorizations, permits, verifications, extensions, biological opinions, incidental take statements, and any other approvals or orders issued pursuant to Federal law necessary’ for constructing and operating MVP.” [15] This act was signed by the President with intentions to expedite the process for the pipeline that originally began construction in 2018, yet remained unfinished and with issues to resolve. Further, another roadblock was evaded in July 2023 when the US Court of Appeals for the Fourth Circuit granted a stay on construction to “consider the constitutionality of the act,” but was subsequently saved on July 27, as “the Supreme Court granted an emergency application from MVP’s developer to vacate the stays of the Fourth Circuit, allowing construction to resume.” [16] It appears that the Supreme Court saw many of these lawsuits as redundant, since this project had already been attacked in every way conceivable. This decision was seen as a major win for the pipeline. 

In August, the Fourth Circuit denied challenges to federal authority in granting permission to the MVP LLC to continue construction, stating that there was “no longer a live controversy” after Congress passed Section 324 .[17] It was evident from this decision that the Fourth Circuit believed that the project should continue at this point and that any extra legal entanglements would be unnecessary after the passage of the Fiscal Responsibility Act of 2023. In October, property owners in Franklin, Montgomery and Roanoke counties in North Carolina decided to file an emergency injunction request to stop construction on their properties after having their 2020 lawsuit against the FERC dismissed, but were denied by the U.S. Circuit Court of Appeals for the District of Columbia. [18]

Despite the passage of the act and dismissal of lawsuits, construction was still slowed due to protestors who “coordinated with others to illegally attach themselves to the land and construction equipment.” [19] The 932-day sit lasted from 2019 to 2021 and led the LLC to sue two of the protestors to sustain their legal battles. [20] This marked a particularly slow and uneventful period in the development of the project as they were unable to get any real construction done. The MVP LLC claimed that their right to build on these lands, granted through the Fiscal Responsibility Act, was violated by these protestors, and they sought to use this right to gain financial compensation for the massive delays caused by the protestors. [21] 

Finally, in February 2024, a U.S. Court of Appeals for the D.C. Circuit dismissed a secondary appeal for the same 2020 case relating to the legitimacy of MVP’s eminent domain status from families across three counties in Virginia. [22] The group of families decided to challenge the authority of the FERC once again but was swiftly denied by the same court that denied their October injunction requests. This lawsuit is similar to those decided prior to 2020 that were previously listed involving Sierra Club, Bold Alliance, and others. It appears that the pipeline will be functional soon, maybe as early as the end of the first quarter of 2024, but a statement from the landowners’ counsel proves that the legal battles will not end here and that they will continue to weigh their options. [23] Despite the years of continued attempts at preventing this pipeline from being built and operated, the MVP LLC has managed to work through the adversity by way of their financial backing, support from the government, and continued perseverance by the project developers. 

Notes:

  1. Mountain Valley Pipeline, LLC. "Mountain Valley Pipeline Project." Last updated 2024. https://www.mountainvalleypipeline.info/.

  2. Mountain Valley Pipeline, LLC. "Mountain Valley Pipeline Project."

  3. MVP Southgate. "MVP Southgate." Accessed February 22, 2024. https://www.mvpsouthgate.com/.

  4. Mountain Valley Pipeline, LLC. "Mountain Valley Pipeline Project."

  5. West Virginia Department of Environmental Protection. "MVP LLC Signed Order." Last updated March 7, 2023. https://dep.wv.gov/pio/Documents/MVP%20LLC%20SIGNED%20ORDER.pdf.

  6. West Virginia Department of Environmental Protection. "MVP LLC Signed Order." 

  7. North Carolina Department of Environmental Quality. "State Reissues Denial of Water Quality Certification for MVP Southgate Pipeline." April 29, 2021. https://www.deq.nc.gov/news/press-releases/2021/04/29/state-reissues-denial-water-quality-certification-mvp-southgate-pipeline.

  8. Chloe Marie. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 2." Penn State Agricultural Law, accessed February 22, 2024. https://aglaw.psu.edu/shale-law-in-the-spotlight/mountain-valley-pipeline-overview-of-litigation-regarding-the-pipeline-construction-part-2/.

  9. Chloe Marie. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 2."

  10. Chloe Marie. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 3." Penn State Agricultural Law, accessed February 22, 2024. https://aglaw.psu.edu/shale-law-in-the-spotlight/mountain-valley-pipeline-overview-of-litigation-regarding-the-pipeline-construction-part-3/.

  11. Marie. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 3." 

  12. U.S. Senate Committee on Energy & Natural Resources. "Comprehensive Permitting Reform Text." Accessed February 22, 2024. https://www.energy.senate.gov/services/files/EAB527DC-FA23-4BA9-B3C6-6AB108626F02.

  13. U.S. Senate Committee on Energy & Natural Resources. "Comprehensive Permitting Reform Text." 

  14. Paul W. Parfomak and Adam Vann. "Report IN12032." Congressional Research Service, accessed February 22, 2024. https://crsreports.congress.gov/product/pdf/IN/IN12032.

  15. Parfomak and Vann. "Report IN12032." 

  16. Parfomak and Vann. "Report IN12032." 

  17. Clark Mindock. "U.S. Appeals Court Rejects Challenge to Mountain Valley Pipeline." Reuters, August 11, 2023. https://www.reuters.com/legal/us-appeals-court-rejects-challenge-mountain-valley-pipeline-2023-08-11/.

  18. Matt Busse. "Judges Deny Landowners' Emergency Request to Halt Mountain Valley Pipeline Work." Cardinal News, October 25, 2023. https://cardinalnews.org/2023/10/25/judges-deny-landowners-emergency-request-to-halt-mountain-valley-pipeline-work/.

  19. Clark Mindock. "Mountain Valley Pipeline Sues Protesters Obstructing Construction." Reuters, November 10, 2023. https://www.reuters.com/legal/litigation/mountain-valley-pipeline-sues-protesters-obstructing-construction-2023-11-10/.

  20. Matt Dhillon. "Tree Sitters Removed from Mountain Valley Pipeline Path." The Appalachian Voice, April 16, 2021. https://appvoices.org/2021/04/16/tree-sitters-removed-mvp/. ; Mindock. "Mountain Valley Pipeline Sues Protesters Obstructing Construction."

  21. Mindock. "Mountain Valley Pipeline Sues Protesters Obstructing Construction." 

  22. Matt Busse. "Southwest Virginia Landowners' Mountain Valley Pipeline Lawsuit Dismissed Again." Cardinal News, February 14, 2024. https://cardinalnews.org/2024/02/14/southwest-virginia-landowners-mountain-valley-pipeline-lawsuit-dismissed-again/.

  23. Busse. "Southwest Virginia Landowners' Mountain Valley Pipeline Lawsuit Dismissed Again."

Bibliography:

Busse, Matt. "Judges Deny Landowners' Emergency Request to Halt Mountain Valley Pipeline Work." Cardinal News, October 25, 2023. https://cardinalnews.org/2023/10/25/judges-deny-landowners-emergency-request-to-halt-mountain-valley-pipeline-work/.

Busse, Matt. "Southwest Virginia Landowners' Mountain Valley Pipeline Lawsuit Dismissed Again." Cardinal News, February 14, 2024. https://cardinalnews.org/2024/02/14/southwest-virginia-landowners-mountain-valley-pipeline-lawsuit-dismissed-again/.

Dhillon, Matt. "Tree Sitters Removed from Mountain Valley Pipeline Path." Appalachian Voices, April 16, 2021. https://appvoices.org/2021/04/16/tree-sitters-removed-mvp/.

Marie, Chloe. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 2." Penn State Agricultural Law, accessed February 22, 2024. https://aglaw.psu.edu/shale-law-in-the-spotlight/mountain-valley-pipeline-overview-of-litigation-regarding-the-pipeline-construction-part-2/.

Marie, Chloe. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 3." Penn State Agricultural Law, accessed February 22, 2024. https://aglaw.psu.edu/shale-law-in-the-spotlight/mountain-valley-pipeline-overview-of-litigation-regarding-the-pipeline-construction-part-3/.

Mindock, Clark. "Mountain Valley Pipeline Sues Protesters Obstructing Construction." Reuters, November 10, 2023. https://www.reuters.com/legal/litigation/mountain-valley-pipeline-sues-protesters-obstructing-construction-2023-11-10/.

Mindock, Clark. "U.S. Appeals Court Rejects Challenge to Mountain Valley Pipeline." Reuters, August 11, 2023. https://www.reuters.com/legal/us-appeals-court-rejects-challenge-mountain-valley-pipeline-2023-08-11/.

Mountain Valley Pipeline, LLC. "Mountain Valley Pipeline Project." Last updated 2024. https://www.mountainvalleypipeline.info/.

MVP Southgate. "MVP Southgate." Accessed February 22, 2024. https://www.mvpsouthgate.com/.

North Carolina Department of Environmental Quality. "State Reissues Denial of Water Quality Certification for MVP Southgate Pipeline." April 29, 2021. https://www.deq.nc.gov/news/press-releases/2021/04/29/state-reissues-denial-water-quality-certification-mvp-southgate-pipeline.

Parfomak, Paul W., and Adam Vann. "Report IN12032." Congressional Research Service, accessed February 22, 2024. https://crsreports.congress.gov/product/pdf/IN/IN12032.

West Virginia Department of Environmental Protection. "MVP LLC Signed Order." Last updated March 7, 2023. https://dep.wv.gov/pio/Documents/MVP%20LLC%20SIGNED%20ORDER.pdf.

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