Gas pipeline construction in Greece.

Congress Streamlined the Pipeline Construction by Limiting Court’s Jurisdiction

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On July 27, the U.S. Supreme Court issued a three sentence order that vacated the U.S. Court of Appeals for the Fourth Circuit’s orders staying the construction of the Mountain Valley Pipeline. The pipeline is being built through Virginia and West Virginia and is being constructed to provide additional natural gas for winter in the South and Mid-Atlantic. Several environmental groups oppose this pipeline because they allege that endangered fish species would be harmed by the construction.   

The Fiscal Responsibility Act of 2023, Pub.L.No. 118-5, 137 Stat. 10 (2023) (“the Act”) approved Mountain Valley Pipeline’s outstanding permits for completion. Section 324 of the Act further stated that: (1) no court shall have jurisdiction to consider further litigation of the permits approved under the Act, notwithstanding any other provision of the law; and (2) it granted the D.C. Court of Appeals exclusive jurisdiction to adjudicate all claims either challenging the constitutionality of Section 324 or that allege that any agency actions are not within the authorizations under the Act.  

Congress has the power to limit the jurisdiction of the federal courts under Article III of the U.S. Constitution, and in this case, Congress used its power to make certain the pipeline would be completed in a timely fashion. Congress’ power to strip the courts’ jurisdiction is a complicated subject. While the U.S. Supreme Court ruled in United States v. Klein, 80 U.S. 128 (1879) that Congress may not, by limiting appellate jurisdiction, dictate the outcome of a particular case, a 2016 opinion in Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016)seems to limit the independence of the judiciary.

In the Bank Markazi decision, while the Supreme Court decided that Congress could not invade the judicial role by dictating a ruling in a particular case, the court recognized that Congress is permitted to amend the substantive law in a manner that may alter the outcome of pending litigation.   

Notwithstanding the restrictions outlined in the Act, the Fourth Circuit issued a stay on the completion of the pipeline pending a hearing on the merits of the challenges to the construction. These challenges were pending before the Act was passed and a full hearing on the merits of the challenges were set to be heard on July 27, the same day the Supreme Court issued its ruling. The challenges to the authorizations was the third iteration of authorizations. The Fourth Circuit had vacated or stayed previous versions resulting in years of agency work. The Mountain Valley Pipeline requested an emergency order setting aside the stay. Multiple environmental groups opposed this request.  

The Supreme Court’s order said little about the merits of these arguments, judicial power stripping, or Congress’ ability to make rulings specific to an individual entity as part of larger legislation. Instead, it simply vacated the stay orders and refused to treat the application as a writ of mandamus – without prejudice to making that determination later “in light of subsequent developments.” 

While the construction moves on, questions remain about whether Section 324 of the Act violates the findings in the Bank Markazi decision.  Given that Section 324 is specific to the Mountain Valley Pipeline, it does seem that the ruling would dictate a ruling in a particular case as opposed to amending law that alters the outcome.