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Winter 2024: Environmental Health & Safety

You Lose, Smith

Scott Borden Grover


  • The Mountain Valley Pipeline (MVP) project is an approximately 300-mile natural gas pipeline running from Wetzel County, West Virginia, to Pittsylvania County, Virginia.
  • The nearly complete MVP has been delayed since 2014 after the D.C. Circuit Court of Appeals upheld FERC’s decision to issue the certificate, but the Fourth Circuit Court of Appeals repeatedly found issue with other federal agency authorizations needed for the project to enter service.
  • The MVP debate will assume a new light when the Supreme Court hears Loper Bright Enterprises v. Raimondo in 2024, with the Chevron doctrine in question.
  • MVP is indicative of how complicated permitting processes have become.
You Lose, Smith
Bloomberg Creative via Getty Images

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In the penultimate provision of the Fiscal Responsibility Act of 2023 (FRA), Congress enacted section 324, Expediting Completion of the Mountain Valley Pipeline. Pub. L. No. 118-5, 137 Stat. 10, 47 (June 3, 2023). The Mountain Valley Pipeline (MVP) project is an approximately 300-mile natural gas pipeline running from Wetzel County, West Virginia, to Pittsylvania County, Virginia. Construction is almost complete, but not quite. Efforts to get the pipeline up and running have been ongoing since 2014, when pre-filing activities commenced at the Federal Energy Regulatory Commission (FERC). With one commissioner dissenting, a three-member FERC issued a certificate of public convenience and necessity under section 7(c) of the Natural Gas Act in the fall of 2017, over the collective objection of a number of interested intervenors. See Mountain Valley Pipeline, LLC, 161 FERC ¶ 61,043 (2017).

While the D.C. Circuit Court of Appeals upheld FERC’s decision to issue the certificate, the Fourth Circuit Court of Appeals has repeatedly found issue with other federal agency authorizations needed for the project to enter service—including the Army Corps of Engineers, the Department of Interior’s Bureau of Land Management (BLM), the Department of Agriculture’s Forest Service, and the Fish and Wildlife Service (FWS). See, e.g., Sierra Club, Inc. v. U.S. Forest Serv., 897 F.3d 582 (4th Cir. 2018). These decisions, of course, delayed MVP’s ability to work on the project and forced MVP to return to the various agencies in an effort to obtain authorizations that satisfied the Fourth Circuit. The delays also resulted in MVP missing the in-service date specified in the certificate issued by FERC. MVP received authorization from FERC to resume work on various aspects of the project, decisions that were challenged as well in the D.C. Circuit. While the D.C. Circuit upheld the pertinent orders, on May 26, 2023, it granted the petitions for review respecting FERC’s decision to not prepare a supplemental environmental impact statement. The court did not, however, vacate FERC’s orders relating to work on the project. Sierra Club v. FERC, 68 F.4th 630 (D.C. Cir. 2023).

Seven days later, President Biden signed the FRA into law. Declaring MVP to be “in the national interest,” section 324 of the FRA ratified and approved MVP, “[n]otwithstanding any other provision of law,” and directed all relevant agencies to continue to maintain all such “authorizations, permits, verifications, extensions, biological opinions, incidental take statements, and any other approvals or orders issued pursuant to Federal law necessary for the construction and initial operation at full capacity of [MVP].” FRA § 324(c). Section 324 also provided that no court shall have jurisdiction to review any action taken by any agency granting any of the enumerated authorizations, “whether issued prior to, on, or subsequent to the date of enactment of this section, and including any lawsuit pending in a court as of the date of enactment of this section.” Id. § 324(e)(1). Further, section 324 declared the D.C. Circuit to have original and exclusive jurisdiction over any claim challenging the FRA’s actions regarding MVP. Id. § 324(e)(2). Lastly, section 324 stated that it “supersedes any other provision of law (including any other section of this Act or other statute, any regulation, any judicial decision, or any agency guidance)” inconsistent with any of the enumerated authorizations for MVP. Id. § 324(f).

Lawsuits were pending—specifically, petitions for review in the Fourth Circuit concerning recently issued authorizations from BLM, the Forest Service, and FWS. And notwithstanding section 324’s provisions, the Fourth Circuit issued stays, once again halting construction (which FERC had fully and formally authorized on June 28, finding MVP to have “all necessary authorizations” given in section 324. Mountain Valley Pipeline, LLC, 183 FERC ¶ 61,221, P 10 (June 28, 2023).

MVP then turned to the Supreme Court’s so-called shadow docket, and, on July 14, filed an emergency application to Chief Justice Roberts to vacate the Fourth Circuit’s stays. As part of its application, MVP also requested that the Supreme Court treat the application as a petition for writ of mandamus directing the Fourth Circuit to dismiss the pending petitions for review. On July 27, the same day that the Fourth Circuit heard oral arguments on the MVP motions to dismiss the petitions pending before it, the Supreme Court (with no justice separately writing) vacated the stays. In its order, the Court declined to “treat the application as a petition for a writ of mandamus at this time . . . without prejudice to further consideration in light of subsequent developments.” Mountain Valley Pipeline, LLC v. Wilderness Soc’y, Case No. 23A35, 2023 WL 4770018 (July 27, 2023).

Matters then returned to the Fourth Circuit for an exercise reminiscent of a first-week federal courts class hypothetical: Did Congress lawfully eliminate the Fourth Circuit’s jurisdiction and terminate the pending challenges to MVP? The court found so for two reasons. See Appalachian Voices v. DOI, 2023 WL 5163878, at *2 (4th Cir. Aug. 11, 2023). First, the court concluded that Congress’s ratification of the agency decisions in section 324(c), notwithstanding any other provision of law, “necessarily amended the legal standards that previously applied” to the Fourth Circuit’s review of the underlying agency actions. This effectively eliminated all underlying controversy and rendered the case moot. Id. at *3. Second, section 324 stripped the Fourth Circuit (and other courts) of jurisdiction, including over the pending petitions for review. Recognizing the openness of the question of Congress’s power to effectively dictate the outcome of a case by stripping a court of jurisdiction, the court found its hands tied, as section 324 funnels any challenge to its own legitimacy to the D.C. Circuit. See id. at *4–5. Accordingly, the Fourth Circuit dismissed the proceedings.

The referenced uncertainty stems from two relatively recent Supreme Court decisions: Bank Markazi v. Peterson, 578 U.S. 212 (2016), and Patchak v. Zinke, 138 S. Ct. 897 (2018). In Bank Markazi, the Supreme Court upheld a law designed to allow foreign financial assets to be subject to execution to satisfy an award of compensatory damages against Iran for damages for personal injury or death caused by certain acts of terrorism. See 578 U.S. at 216–19. The Court rejected claims that the law violated separation of powers, finding, among other things, the law not to offend the principle that Congress could not pass a law directing, in the case “Smith v. Jones,” “Smith wins.” Rather, Congress changed the applicable law to the issues pending. Id. at 232. Chief Justice Roberts (joined by Justice Sotomayor) disagreed, however, viewing the action as a “chang[e in] the law—for these proceedings alone—simply to guarantee that respondents win. The law serves no other purpose—a point, indeed, that is hardly in dispute. As the majority acknowledges, the statute ‘“sweeps away . . . any . . . federal or state law impediments that might otherwise exist”’ to bar respondents from obtaining Bank Markazi’s assets.” Id. at 242 (Roberts, C.J., dissenting).

Two years later, Patchak further fractured the Court. That case involved a dispute over action by DOI to take land into trust on behalf of the Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians. Litigation over the action had lingered for some time, but a second round was stymied when Congress passed legislation reaffirming the land as trust land and ratifying and confirming the actions of DOI. In addition, Congress declared that “[n]otwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.” 138 S. Ct. at 903–04. Writing for a four-member plurality, Justice Thomas (joined by Justices Alito, Breyer, and Kagan) found the congressional action a permissible change in law. “[T]he legislative power is the power to make law, and Congress can make laws that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins.” Id. at 905. Justices Ginsburg and Sotomayor took a more narrow view, finding the action a permissible decision by Congress to reestablish the government’s sovereign immunity from suit. See id. at 912–13 (Ginsburg, J., concurring). In dissent (and joined by Justices Kennedy and Gorsuch), Chief Justice Roberts again expressed the steadfast view that Congress had, through its actions, impermissibly exercised judicial power. Congress had, in his view, “pronounced the equivalent of ‘Smith wins.’” Id. at 918 (Roberts, C.J., dissenting). And that, in his view, portended a grave prospect, the inability “‘to guard the Constitution and the rights of individuals from . . . serious oppressions.’” Id. at 922 (citing The Federalist No. 78, at 469 (A. Hamilton)).

Returning to the present, in separate concurring opinions, the other judges on the Fourth Circuit panel in Appalachian Voices echoed Chief Justice Roberts’ concern over the state of affairs. Judge Gregory minced few words, calling section 324 a “blueprint for the construction of a natural gas pipeline by legislative fiat” and, if constitutional, “a harbinger of erosion not just to the environment, but to our republic.” Appalachian Voices, 2023 WL 5163878, at *8 (Gregory, J., concurring). Likewise troubled by the overarching separation-of-power implications, Judge Thacker also considered questions more specific to the Fourth Circuit. Noting that the court had been “variously referred to by certain media and politicians as overstepping, activist, alarming, willful, ignoring the law, and a judicial hellhole,” Judge Thacker wondered if section 324 signaled a world where “Congress, with particular pending litigation in mind, [could] strip a particular court of jurisdiction to hear a certain type of cases when it disagrees politically with the view of the law that court has taken in the past [. . . or] punish courts for rulings that it views as ‘political’ or ‘activist’ by stripping them of jurisdiction over similar cases?” Id. at *9–10.

The final page on this story likely remains to be written, given the jurisdictional grant Congress gave the D.C. Circuit to review the invalidity of section 324. As the courts tell the story, a retreat to 50,000 feet for some bigger-picture introspection, in the spirit of the clear-statement rule that “Congress means for its laws to operate in congruence with the Constitution rather than test its bounds,” is warranted. Cf. West. Va. v. EPA, 142 S. Ct. 2587, 2616 (2022) (Gorsuch, J., concurring). First, the judicial angst expressed over the extent to which Congress might be able to take action in a given situation to give “Smith” the win feels somewhat akin to how, to the hammer, everything appears a nail. That is to say, the legislation may be about an outcome bigger and broader than the perceived slight to judicial autonomy. This seems particularly evident in the MVP situation, given the history of the project and the approval of it, in various forms and fashions, by any number of agencies and other courts. To be sure, courts commonly send matters back to agencies to cure an error or elaborate on an underlying rationale. But given the repeated reversals in the Fourth Circuit, it seems hard to fault an outsider (perhaps a member of Congress), unencumbered with the details of all of the Fourth Circuit petitions to review, for wondering if an arm of the judicial branch might be aggrandizing power at the expense of the Executive Branch because it was not enthused over a new natural gas pipeline going through its backyard.

Second, much of this debate, particularly as it concerns judicial review over agency action, will assume a new light if the Supreme Court modifies or even vitiates Chevron deference when it hears Loper Bright Enterprises v. Raimondo this fall. If courts are given broader authority to second-guess an agency decision, does it stand to reason that Congress should be shut out from taking action if it believes that a judicial officer with life tenure may be treading into a domain—such as national energy policy—of an agency expert under the pretense of judicial review?

Third, in the context of national energy policy, much of what has played out with MVP is indicative of how complicated permitting processes have become for any number of projects—touching any number of federal and state agencies depending on the scope. To transition the nation’s energy production away from carbon-emitting resources is going to require a myriad of new facilities on the ground, in the form of transmission lines, renewable energy facilities, and pipelines (whether gas, hydrogen, or the proverbial player to be named later). Might it be that Congress should, with affirmative votes by both chambers and, don’t forget, the signature of the president(!), be able to step in from time to time and put its foot down?

Sure, the notion of Congress telling Smith she lost may, in some instance, offend constitutional separation of powers. But a well-functioning system of government ought to have the proverbial “break glass” option, for those moments when she needs to hear the news from someone other than her court.