A three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals on Friday unanimously dismissed environmental groups’ legal challenges against the Mountain Valley Pipeline, saying Congress has eliminated the court’s jurisdiction over the cases.
But two of the judges used their concurring opinions to raise questions about the precedent that is being set, with one wondering if the recent congressional action is “a harbinger of erosion not just to the environment, but to our republic,” and another saying that the 4th Circuit has “no clear guidance from the Supreme Court on where the line between legislative and judicial power lies.”
Mountain Valley Pipeline had argued for the cases to be dismissed, citing the recently passed Fiscal Responsibility Act, which primarily suspended the nation’s debt ceiling so the federal government wouldn’t default on its obligations. The act also included language in its Section 324 that said timely completion of the $6.6 billion, 42-inch-diameter natural gas pipeline from West Virginia into southern Virginia is in the national interest.
The act ordered the approval of all the pipeline’s remaining necessary permits, removed judicial review of those permits and said that only the D.C. Circuit Court of Appeals can hear any challenges to the pipeline provision’s constitutionality.
Environmental groups including Appalachian Voices, the Sierra Club and the Wilderness Society were challenging the 303-mile pipeline’s right to cross through the federally protected Jefferson National Forest as well as a federal opinion that said the pipeline wouldn’t harm endangered species along its route.
Pipeline opponents claimed that by removing the courts’ ability to review the pending cases against the pipeline, Congress effectively picked a winner — Mountain Valley — in those cases and therefore infringed upon the courts’ judicial power.
In writing the opinion for the court, published Friday, Judge James Wynn Jr. said that Congress has the power to ratify federal agency approval, and while “Congress may not impermissibly tell this Court how to apply existing law,” it is constitutional for Congress to provide a new legal standard — in this case, Section 324 — and instruct the court to follow that standard.
“Accordingly, because Congress has ratified the challenged agency actions, there is no longer a live controversy and the underlying petitions are moot. We therefore lack jurisdiction over them,” Wynn wrote.
Wynn also noted that the Constitution grants Congress the power to create federal courts in the first place.
“Provided it does not violate other constitutional provisions, Congress is widely seen to enjoy broad control over the jurisdiction of the federal courts,” Wynn wrote.
Wynn noted that “the exact confines of Congress’s power over jurisdiction are still being debated, especially when it comes to jurisdiction-stripping efforts that appear to dictate the outcome of pending litigation.”
But, he wrote, regardless of the merits of the environmental groups’ arguments, the 4th Circuit is not the court to consider them because Section 324 vests the D.C. Circuit, not the 4th Circuit, with jurisdiction over any claims of the act’s unconstitutionality.
Wynn noted that the 4th Circuit could potentially hear future challenges to the pipeline, such as if Mountain Valley Pipeline were to propose a new spur outside the scope of the original project — a hypothetical scenario that also came up as a point of discussion July 27 when attorneys on both sides of the cases presented oral arguments before Wynn and fellow judges Roger Gregory and Stephanie Thacker.
“We save such challenges for another day,” Wynn wrote.
Gregory, while concurring in a separate opinion that the cases must be dismissed, wrote that the pipeline provision of the Fiscal Responsibility Act is nonetheless “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,” Gregory wrote.
“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.”
In her separate concurring opinion, Thacker said that because Congress legislated that only the D.C. Circuit could decide if Section 324 is constitutional, the only question before the 4th Circuit was whether that D.C. Circuit provision itself is constitutional.
“We limit our inquiry to that question because we have determined we are bound to do so, but the judicial branch should proceed with caution in scenarios like this one,” Thacker wrote, reiterating points of discussion raised during the July 27 oral arguments regarding how far Congress’ jurisdiction-stripping power could go.
The appellate court, she wrote, has “no clear guidance from the Supreme Court on where the line between legislative and judicial power lies, especially when Congress acts for the purpose of influencing pending litigation or even going so far as to pick a winner in that pending litigation.”
After the 4th Circuit panel published its opinion, Natalie Cox, spokesperson for Equitrans Midstream, which holds the largest interest in the Mountain Valley Pipeline, said in a statement that the company agreed with the court’s conclusion.
“Mountain Valley is committed to finalizing work on this critical energy infrastructure project by the end of 2023 in compliance with all approved federal and state authorizations so it can enter service and help satisfy public demand for cleaner, affordable and reliable domestic energy,” Cox said.
Meanwhile, a variety of environmentalists condemned the ruling.
“It has been clear from the outset that the proposal to construct this pipeline across the steep slopes and sensitive streams of Appalachia will threaten communities and harm imperiled species and their habitats,” Ben Jealous, executive director for the Sierra Club, said in a statement. “Congress’s action apparently gives the Mountain Valley Pipeline a free pass to edge out vulnerable species and steamroll communities in its path.”
Jessica Sims, Virginia field coordinator for Appalachian Voices, called the pipeline “a dangerous, destructive project that repeatedly failed in attempts to obtain federal authorizations that could withstand legal scrutiny until it convinced its friends in Congress to intervene.”
“We will not give up our efforts to protect the communities suffering the consequences of this unnecessary project,” Sims said in a statement.
The Mountain Valley Pipeline project was first announced in 2014 and initially was expected to be complete in 2018. Pipeline officials now say the work is more than 90% done, although opponents dispute that figure.
The pipeline begins in northwestern West Virginia, and then in Virginia passes through Giles, Craig, Montgomery, Roanoke and Franklin counties before connecting to a compressor station in Pittsylvania County.
Over the years it has been delayed by a number of legal and permitting challenges, many of which have come before the 4th Circuit, whose geographic region covers the pipeline’s entire route.
After the Fiscal Responsibility Act was signed into law June 3, pipeline opponents secured a temporary victory when the 4th Circuit ordered stays of construction activity along the pipeline route.
But Mountain Valley Pipeline filed an emergency appeal to the U.S. Supreme Court, and the stays were vacated July 27 as attorneys and appellate judges met in Richmond for oral arguments.