Last month, the Supreme Court vacated a stay entered by the U.S. Court of Appeals for the Fourth Circuit preventing further construction on the controversial Mountain Valley Pipeline (MVP) pending a hearing on last ditch legal efforts to prevent the pipeline's completion. As I noted at the time, the Supreme Court's intervention here was somewhat unusual, but almost certainly prompted by the Fourth Circuit's own unusual (and unwarranted) conduct. Congress had enacted provisions in the Fiscal Responsibility Act of 2023 that expressly called for the approval of all remaining permits, ratified all prior federal agency permits, and constrained further judicial review of such permit approvals, leaving little for the Fourth Circuit to do and even less uncertainty about the ultimate outcome of pending litigation.
Yesterday, the U.S. Court of Appeals for the Fourth Circuit granted the motions filed by the MVP's owners and several federal agencies to dismiss pending petitions challenging the project under various environmental laws, though they do not seem too happy about it. Judge Wynn wrote the opinion for the court, joined by Judges Gregory and Thacker, each of whom also wrote a separate concurrence.
The opinions all suggest Congress's intervention presents serious and weighty separation-of-powers questions. I am unconvinced. As I explained in a prior post about this litigation, Congress is doing little more than curtailing the administrative and judicial constraints on agency action that Congress erected in the first place.
It is worth remembering that the only reason environmentalist groups have been able to challenge the Mountain Valley Pipeline in the first place is because Congress decided to impose permitting and other requirements for projects like this and further provided for judicial review of the relevant agency determinations to ensure that Congress's standards had been met. What Congress giveth, Congress may also take away. Congress was not required to allow environmentalists or anyone else to challenge whether a Forest Service or Fish & Wildlife Service decision was arbitrary and capricious or otherwise not in accordance with law. Indeed, Congress did not even need to require that projects like the Mountain Valley Pipeline obtain federal permits at all. Thus Congress is certainly free to declare that the standards Congress set forth for projects like this have been met in this particular case—and that is what it did.
The judges apparently see things a bit differently—which explains why the panel entered a stay. But as Professor Dan Farber noted, because there was little doubt about Congress's authority to enact the relevant provisions–including that which provided that only the U.S. Court of Appeals for the D.C. Circuit could hear constitutional challenge to the law–there was no likelihood the MVP's challengers would ever prevail on the merits, so no basis for ordering such relief.
Judge Gregory writes separately to express grave concerns about Congress's actions. He writes:
What does Section 324 say about the rule of law today and the history from which it has taken root? The petitioners in these cases, the "inferior Courts," and Congress alike depend on the answer to that question. And the answer depends, in turn, on the fate of Section 324. Is it simply a change in the law? Or is it an instruction requiring that "the court must deny to itself the jurisdiction" originally granted to it by Congress "because and only because its decision, in accordance with settled law," is averse to the Mountain Valley Pipeline and favorable to its opponents? United States v. Klein, 80 U.S. 128, 147 (1871). Those who celebrate Congress's decision to pass Section 324 into law, no less than those who condemn it, may be forgiven for their judgments because the separation between the legislative and judicial branches presently lacks fortification. See Ante at 12–13 (detailing the Supreme Court's "fractured" decision in Patchak).
There can be no mistake, however, that Section 324 is a blueprint for the construction of a natural gas pipeline by legislative fiat. If that provision is likewise constitutionally sanctioned, then Congress will have found the way to adjudicate by legislating for particular cases and for particular litigants, no different than the governmental excesses our Framers sought to avoid. For that reason, I fear Congress has employed this Court's constitutionally directed deference to legislative prerogatives to undermine the Constitution and, in the process, it has made the Court an accessory to its deeds. If that is so, I wonder if Section 324 is a harbinger of erosion not just to the environment, but to our republic. That, only our Supreme Court can decide.
This is more than a bit overwrought. The only basis for the legal challenges to the MVP at issue here concerned whether various federal agencies had adequately complied with various administrative requirements Congress created. And if Congress sought to reduce those requirements, or deem them satisfied, it was free to do so. Nothing here, however, suggests that Congress is free to, say, authorize a pipeline to run roughshod over private landowners or insulate such a project from pre-existing legal constraints. In other words, what Congress did here was less order "construction of a natural gas pipeline by legislative fiat" than shave down the speedbumps to completion that Congress had itself created.
Judge Thacker also wrote a separate concurrence, raising the same separation-of-powers concerns and responding to public criticism of the Fourth Circuit's conduct.
While I join the conclusion that Congress has acted within its legislative authority in enacting Section 324(e)(2), I write separately because Congress's use of its authority in this manner threatens to disturb the balance of power between co-equal branches of government. Such exercises of the legislative authority "should be viewed with great skepticism." Patchak v. Zinke, 138 S. Ct. 897, 913 (2018) (Sotomayor, J., concurring in judgment). . . .
I am compelled to set the record straight with regard to some of the outside rhetoric that has been spewed in the midst of our work on these cases. My colleagues and I are not politicians or newspaper editorialists. . . .
In response to the passage of Section 324 on June 3, 2023, both Mountain Valley Pipeline, on June 5, and the federal agency Respondents, on June 14, filed motions to dismiss, arguing that in light of Section 324, this court no longer possesses jurisdiction over the pending litigation. Briefing on those motions was completed on July 10. Given the significance of the case and the importance of the issues involving the separation of powers, on July 12 we scheduled the motions for oral argument and expedited the timing of such argument. In other words, we set out to not only do our jobs, but to do so expeditiously. Yet, we have been variously referred to by certain media and politicians as overstepping, activist, alarming, willful, ignoring the law, and a judicial hellhole. Some have gone so far as to say that we are without jurisdiction to even hold a hearing and rule on the motions to dismiss. Wrong.
Although Congress certainly has authority to pass laws impacting federal court jurisdiction, no branch of government in our democracy possesses all powerful authority. That is basic Civics 101. We have three separate but co-equal branches of government: the legislative, executive, and judiciary. Congress makes the law, the executive enforces the law, and the judiciary interprets the law. Although Congress may act to strip federal court jurisdiction, that is not the last word on the matter. The courts still have a role to play. As the majority opinion lays out, "The threshold question before us is whether Section 324 prohibits this Court from determining if we have jurisdiction to review the petitions. In other words, does a federal court retain jurisdiction for the limited purpose of determining whether it has jurisdiction?" Maj. Op. at 7. It should go without saying that political pundits certainly do not get to decide whether our court has jurisdiction or when we can hold a hearing. We do.
If she is that concerned about what pundits are saying about her court's extraordinary actions, Judge Thacker may be spending too much time online. (Her opinion also cites tangentially related comments by Justice Kagan from an August 3 Politico article.) But note that in her recounting of the relevant events, Judge Thacker conveniently neglects to mention the stays entered by her court in July—the stays that prompted much of the public criticism of her court, prompted MVP's application to the Supreme Court, and prompted the Supreme Court's entry or extraordinary emergency relief.
I cannot speak for others who criticized the Fourth Circuit, but my objection was not to the court hearing arguments on the jurisdictional question or taking the time to write an opinion. Rather it was to entering a stay when there was no basis for doing so. (Of note, the Fourth Circuit did not merely enter an administrative stay, and the first stay was entered before the deadline for MVP and the federal government to respond to the stay request.) I am skeptical there was ever a serious constitutional question about Congress's intervention on behalf of the MVP, but even if there were, there was no serious question about Congress's ability to decide where such challenges can be heard.
Constructing additional pipelines (as opposed to electricity transmission) may or may not be a good idea. Reasonable minds may also differ on the extent to which such projects (and federal agency actions upon which they depend) should be subject to extensive environmental and other review. But it should be clear that these are decisions for Congress to make (particularly where, as here, no private rights are threatened). Insofar as Congress concluded that the administrative and other legal hurdles it erected to pipeline construction should be lowered for the MVP, Congress had the power to do that, and–contra the judges of this panel–I do not see how its choice to do raised serious separation-of-powers concerns.
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