Fourth Circuit Court of Appeals Gives Up Jurisdiction of Mountain Valley Pipeline Cases
By John McFerrin
The United States Court of Appeals for the Fourth Circuit has dismissed the last challenges to the Mountain Valley Pipeline that were pending before it. It did so on the basis of the Fiscal Responsibility Act of 2023, passed by Congress in June of 2023.
The Mountain Valley Pipeline is a 300-mile plus natural gas pipeline that would carry natural gas from northern West Virginia into Virginia. Its legal history began in 2017 when the Federal Energy Regulatory Commission approved the pipeline. Since that time, it has been subject of considerable litigation, not to mention public controversy.
It is hard to summarize a years-long history of litigation in a few sentences. At the same time, it is safe to say that the litigation pattern has been that a federal agency has approved some aspect of the pipeline, whether it be how it protects waters when it crosses streams, how it protects endangered species, its effects upon the National Forest, or something else. The approvals have been followed by Court decisions that the agency’s work was slipshod, that corners were cut, etc. The result was that the Courts sent cases back to agencies to try again.
At the time of the dismissal, there were two pending cases. One challenged the authorization of the pipeline to cross the Jefferson National Forest. The other contended that the United States Fish and Wildlife Service had not adequately evaluated the effect of the pipeline on endangered species.
The ruling does not say that the challenges have no merit. For all the Court knows, the agency decisions being challenged could be just as slipshod and corner-cutting as those in the past. Instead of saying that the challenges have no merit, the Court recognized that Congress directed the Court to treat them as if they have no merit.
We’re heading into the legal weeds here; follow at your own risk
The larger purpose, the headliner, of the Fiscal Responsibility Act of 2023 was to avoid default by the United States. Most big, must-pass legislation has a few barnacles that are attached, something that is necessary to please some Senator or secure a vote. One of the barnacles on the Fiscal Responsibility Act of 2023 was the approval of the Mountain Valley Pipeline, included to please Senator Joe Manchin (D, WV).
So far as the pipeline was concerned, the Fiscal Responsibility Act of 2023 did two things. First, it ratified all decisions of federal agencies approving any aspect of the Mountain Valley Pipeline and directed that federal agencies continue to approve it. Second, it gave jurisdiction of all challenges to agency decisions to the Court of Appeals for the District of Columbia.
The Petitioners in this case (citizen groups, including the West Virginia Highlands Conservancy) contended that directing the Court to approve all decisions of the federal agencies was unconstitutional. Then contended that the Constitution assigns different functions to different branches of government, the doctrine known as separation of powers. While Congress makes the law and is free to change it, it does not have the power to decide particular cases. That is the function of the judicial branch, meaning—in this case—the Court of Appeals for the Fourth Circuit.
It is clear that Congress has the power to change the law. It also has the power to declare which Court has jurisdiction over proceedings. It gets onto shaky constitutional grounds when it tries to direct a court on how to decide a particular case. Such a result would probably be a violation of separation of powers principles.
While Congress has a clear right to decide what courts have jurisdiction over which cases, there is some indication in the law that using its powers to dictate jurisdiction to control the outcome in a particular case violates the separation of powers principles.
The Court of Appeals for the Fourth Circuit left open the possibility that, in the case of the Mountain Valley Pipeline, Congress had impermissibly used its powers to dictate jurisdiction to control the outcome of a particular case. It did not resolve that issue because of the second thing that the Fiscal Responsibility Act of 2023 did.
The second thing that the Act did was to give jurisdiction of all Mountain Valley Pipeline cases to the Court of Appeals for the District of Columbia. There is not any doubt, under the United States Constitution, that Congress has the right to dictate the jurisdiction of federal courts. Because of this, Congress could declare that challenges to the Mountain Valley Pipeline could only occur in the District of Columbia.
Since Congress had the authority to give jurisdiction over challenges to the Mountain Valley Pipeline to only the District of Columbia court, the Court for the Fourth Circuit had no choice but to dismiss the challenges to the Mountain Valley Pipeline.
Back out of the weeds; safe to start reading again
So, is it over? In Court, probably, but not certainly. The Court left open the possibility that the groups could go to the Court of Appeals for the District of Columbia to pursue their claim that the Fiscal Responsibility Act of 2023 is unconstitutional on separation of powers grounds. To date, the groups have not announced any action to do that.
On the ground, maybe not. Court cases are argued by people in suits and decided by people in robes on the basis of abstractions like jurisdiction and separation of powers.
People on the ground are looking at a 42-inch pipeline running through their property, installed by a company with a poor record of environmental compliance. People on the ground are looking at a decades-long commitment to continuing the use of fossil fuels. Many people have strong feelings about this. It is not clear what protests there will be in the future or what form they will take. The West Virginia Highlands Conservancy is not involved in any protests, although—with its large and diverse membership—some of its members may be.