Landowners fight to keep Mountain Valley lawsuit alive

By Niina H. Farah | 08/15/2023 06:49 AM EDT

“Apparently, the separation of powers applies to everyone except Congress and its favored litigants,” said a lawyer for property owners living in the pipeline’s path.

Construction work in Roanoke, County, Va., in 2018 on a tunnel through which the Mountain Valley pipeline could pass.

Construction work in Roanoke County, Va., in 2018 on a tunnel through which the Mountain Valley pipeline could pass. Heather Rousseau/The Roanoke Times via AP Photo

Virginia landowners who sued to stop the Mountain Valley pipeline from crossing their property are fighting to keep their court challenge alive — even after Congress brokered a deal to ensure the natural gas project’s completion.

Cletus and Beverly Bohon, along with two other families, had struggled to gain legal footing in their constitutional battle against federal energy regulators’ methods for allowing natural gas pipeline developers to acquire private land for projects. Then the Supreme Court threw the Bohons a lifeline in the spring, telling a federal appeals court to take a second look at the landowners’ case.

The outcome of the case — if a court allows it to proceed — could create a significant challenge to federal law on eminent domain.


This summer, Congress presented the property owners with a new hurdle: A provision tucked into the debt ceiling deal required federal agencies to equip Mountain Valley developers with the permits they need to build their 303-mile gas pipeline through West Virginia and Virginia.

The legislation also ordered federal courts to stay out of the fight.

But in court documents filed last week, a private attorney representing the Bohons claimed that the section of the Fiscal Responsibility Act that mandated completion of the Mountain Valley pipeline, sometimes referred to as MVP, violates both the Constitution’s equal protection clause and prohibitions on titles of nobility.

“If the bill truly does what MVP claims, then it exempts MVP from the Constitution,” wrote Mia Yugo in an Aug. 7 filing with the U.S. Court of Appeals for the District of Columbia Circuit. “Apparently, the separation of powers applies to everyone except Congress and its favored litigants.”

“All other citizens whose land is taken can raise structural constitutional challenges,” she continued. “But Cletus cannot because, in MVP’s view, Congress has declared that Cletus suddenly has no constitutional rights and that Congress is above the Constitution.”

The Bohons’ claims echo the unsuccessful arguments of environmental groups that tried to convince the 4th U.S. Circuit Court of Appeals — a federal bench in Virginia that has struck down multiple Mountain Valley approvals — to rule on lawsuits against the pipeline that were filed before President Joe Biden signed the debt ceiling deal into law in June.

Environmentalists had argued that the government agencies that reissued the permits after earlier legal challenges were still not doing enough to account for how the pipeline could affect the Jefferson National Forest or species like the Roanoke logperch and candy darter.

On Friday, the 4th Circuit ruled against the green groups, reluctantly finding that Congress through the debt ceiling legislation had stripped the court of its authority to hear their challenges. The 4th Circuit told the environmental groups they could challenge the constitutionality of the legislation in the D.C. Circuit — the court where the Bohons have raised their eminent domain challenge.

Another Mountain Valley challenge is still pending in the D.C. Circuit. In that lawsuit — in which environmental groups are challenging a certificate extension granted by the Federal Energy Regulatory Commission — the Biden administration recently filed briefs asking the court to dismiss the case in light of the Fiscal Responsibility Act.

Yugo has said that the legislation “clearly targets” the 4th Circuit for its repeated smackdowns of Mountain Vally permits. She has distinguished the Bohons’ case from other lawsuits against the pipeline.

The landowners’ case isn’t focused on a specific permit, she said. Instead, the lawsuit targets the power of FERC to allow private companies to condemn land.

Yugo described the Bohons’ lawsuit as alleging a “structural constitutional defect in FERC’s enabling legislation” — the Natural Gas Act — rather than a direct attack on the commission’s certificate authorizing pipeline construction.

She said: “That defect will remain no matter where the pipeline is routed, how many environmental permits are granted or denied, or whether the order authorizing this particular project is set aside or not.”

Agency power

The landowners’ filings follow a Supreme Court order that kicked back the Bohons’ challenge to the D.C. Circuit in light of a separate ruling from the high court that dealt with federal agencies’ handling of constitutional claims.

The Supreme Court stepped in after the D.C. Circuit and U.S. District Court for the District of Columbia found that the landowners had not filed their lawsuit in the proper venue. The justices said in their April order that the D.C. Circuit should reexamine that finding after accounting for the Supreme Court’s ruling in Axon Enterprise Inc. v. Federal Trade Commission, which said courts — rather than agencies’ in-house judges — are the best arbiters of constitutional challenges.

In recent supplemental briefs, both FERC and Mountain Valley said the Axon ruling should not change the D.C. Circuit’s earlier decision to toss out the Bohons’ challenge.

One important difference between the cases, said Mountain Valley attorneys, is that the Supreme Court said it was dealing with implicit jurisdiction stripping in Axon. But in the landowners’ case, lawyers for the pipeline said, Congress explicitly stated in the Natural Gas Act that federal district courts do not have the power to decide lawsuits like the one the Bohons filed.

FERC agreed that the Axon ruling actually supports the D.C. Circuit’s finding that the district court did not have jurisdiction to hear the Bohons’ challenge in the first place. That’s because the justices allowed Congress to give another court jurisdiction, which is what lawmakers did when they said Natural Gas Act challenges should go straight to federal appellate court, FERC lawyers wrote.

“Unlike Axon, there is not a blank slate when interpreting the scope of the Natural Gas Act’s judicial review provisions,” the commission wrote.

“In addition to the clear meaning of the Natural Gas Act’s exclusive judicial review provisions … this Court’s earlier judgment appropriately relied on Supreme Court precedent construing an effectively identical provision of the Federal Power Act,” FERC continued.

But Yugo argued that the Axon ruling adopted a test that was relevant to the landowners’ case. The courts, she said, have to decide whether an agency would be able to fix the problem by taking action like moving a pipeline route.

If so, “then the challenge must be brought initially to the agency because the agency can remedy the harm,” she said. “If, however, the agency cannot cure the defect, the challenge must be initiated in district court.”

‘Collateral attack’

Mountain Valley also pushed back on the Bohons’ claim that their lawsuit is different because it is not a direct attack on the pipeline’s FERC certificate.

One of the stated goals of the landowner lawsuit, attorneys for the developers wrote, is for the D.C. Circuit to void the commission’s 2017 certificate for the pipeline.

“Given the Plaintiffs’ own framing of their desired relief, this Court and the District Court both correctly construed this action as a ‘collateral attack on the FERC order,'” Mountain Valley’s lawyers wrote.

The Fiscal Responsibility Act, FERC and the pipeline developer argued, gives the D.C. Circuit a route to a narrow ruling — without having to decide that Axon does not apply to the landowners’ case.

Passage of the legislation “provides an opportunity for this Court to bypass broader questions” about what courts should review these types of challenges, said Mountain Valley.

Yugo pushed back on the pipeline developer’s reading of the law.

“Now, MVP claims that Congress is retroactively applying a new set of rules — designed only for Cletus — which were not in place at the time of the taking,” she wrote. “This is precisely the type of unfairness and inequality the Founders sought to prevent.”