Mountain Valley pipeline turns to Supreme Court

By Niina H. Farah | 07/17/2023 06:38 AM EDT

Justices have an opportunity to quickly restart work on the natural gas pipeline after a lower court blocked construction — against orders from Congress.

A statue and columns at the U.S. Supreme Court

A statue and columns at the Supreme Court are shown. Francis Chung/E&E News

The Supreme Court may soon step into a legal brawl over whether Congress violated the Constitution when it passed a law ensuring completion of the Mountain Valley pipeline — a fight that could have important implications for the power of the judiciary.

On Friday, the lead developer of the contentious Mountain Valley pipeline filed an emergency application asking the justices to undo orders from a lower court that froze construction of the project designed to bring natural gas 303 miles from West Virginia to southern Virginia.

The key question before the justices is whether the 4th U.S. Circuit Court of Appeals had the power to take action against the pipeline following the passage of a debt ceiling deal provision that stripped the judicial branch of jurisdiction over the project. Mountain Valley developers say the 4th Circuit was clearly in the wrong.


“Instead of heeding Congress’s unambiguous command, the Fourth Circuit exceeded the scope of its jurisdiction by entering stays of the very agency orders that Congress deprived the Fourth Circuit of jurisdiction to review,” Mountain Valley Pipeline LLC wrote in its Supreme Court filing.

Opponents of the pipeline argue instead that Congress acted outside its constitutional authority because the Mountain Valley debt deal provision effectively determined the outcome of cases still before the courts.

Legal experts say the question of how Congress can direct courts’ jurisdiction over pending cases wades into murky legal precedent and raises concerns about the separation of powers between the branches of government.

“The underlying legal issue in the case is about where the line is between the legislative power that Congress has, and the judicial powers that the courts have,” said Evan Zoldan, a law professor at the University of Toledo.

Mountain Valley developers have asked the Supreme Court to resolve whether the debt deal provision is more like lawmaking or adjudication, he said.

Congress can’t pass a law that tells a court it must make a specific finding in a pending case, said Louis Virelli, a law professor at Stetson University.

“What they are doing there is taking away the courts’ ability to make a decision based on the law,” Virelli said.

However, it has been “pretty well settled” that Congress can pass laws that affect the outcome of cases that are already before a court — even if there has been a trial and the case is on appeal, Virelli said.

While the distinction may seem clear on paper, it hasn’t been quite so simple in practice.

“The Supreme Court has had a hard time just drawing a line between what’s allowed and what’s not allowed in using jurisdiction to shape the outcome of cases,” said Dan Farber, faculty director the Center for Law, Energy & the Environment at the University of California, Berkeley.

While Farber considers the Mountain Valley provision constitutional, he said the muddier part of the legislation is where it said no court can hear arguments about whether the approvals for the pipeline are valid.

“Now it looks like they’re micromanaging what the federal courts are doing,” he said of Congress.

Legal experts noted the broader effect of a Supreme Court ruling on the role of Congress in determining judicial jurisdiction.

Disrupting the separation of powers between the branches of government more generally raises questions about Congress potentially showing favoritism or animus — or straying from its mandate to set generally applicable policies, said Zoldan.

“You might feel concerned when you see Congress making an exception from the general policy for a particular person or particular company,” he said. “Maybe Congress isn’t … making a considered decision about what the law ought to be and what the policy ought to be and sticking with it.”

‘Pain in the neck’

The 4th Circuit orders freezing work on the Mountain Valley pipeline came just as the fate of the long-delayed project seemed all but sealed.

Lawmakers included a provision in the Fiscal Responsibility Act clearing the way for the $6.6 billion pipeline by lead developer Equitrans Midstream Corp. to receive its remaining permits. In the process, legislators also stripped the courts of jurisdiction over those permits, seemingly in direct response to the 4th Circuit repeatedly rejecting numerous approvals for the pipeline.

“Plainly what Congress is really saying is that the 4th Circuit has been a pain in the neck and should mind its own business,” said Farber. “That’s the subtext.”

After the debt deal was passed, environmental groups that have fought for six years to block the Mountain Valley project rushed back to the 4th Circuit. They argued that the legislative provision signed into law in June by President Joe Biden was unconstitutional because Congress had unlawfully directed the outcome of a pending legal case.

Last week, the 4th Circuit responded by issuing back-to-back freezes on reissued approvals from the Forest Service and the Bureau of Land Management to build the pipeline through a 3.5-mile segment of the Jefferson National Forest. The court also blocked the Fish and Wildlife Service’s redone biological opinion and incidental take statement.

Neither order explained the court’s reasoning.

In its Supreme Court application Friday, Mountain Valley said it is “critical” for the justices to take action in the case to ensure construction gets underway before winter weather sets in and work is delayed until next spring.

“Congress could not have been clearer that the national interest requires that the Pipeline be completed ‘expediti[ously],'” the pipeline developer wrote in its application.

The 4th Circuit ordered the stays despite the fact that the debt ceiling deal explicitly stated that constitutional challenge to the provision — Section 324 —should go instead to the U.S. Court of Appeals for the District of Columbia Circuit.

“Section 324 unambiguously removes jurisdiction from all courts, including the Fourth Circuit,” to decide the fate of Mountain Valley’s permits, pipeline developers wrote in their emergency application.

Mountain Valley developers have asked for a Supreme Court order before July 27, when the 4th Circuit will hear arguments about whether challenges to pending permits are now moot.

‘Shadow docket’

Many legal experts had expected the jurisdictional question in the Mountain Valley case to come to the Supreme Court eventually, but it is unclear whether the justices will rely on their emergency docket, sometimes known as the “shadow docket,” to weigh in on the dispute without full briefing and arguments.

Aaron-Andrew Bruhl, a law professor at William & Mary Law School, said he believes Mountain Valley and the government are correct that the debt ceiling deal is constitutional and that a challenge to the legislation should land in the D.C. Circuit, instead of the 4th Circuit.

“However, the Supreme Court would not only need to agree with that but also consider other factors in order to take the unusual step of intervening now,” Bruhl said in an email.

He added: “Since the Fourth Circuit seems to be treating the case expeditiously … the question would be what great hardship requires the Supreme Court to deal with this itself now rather than letting the process play out for a while.”

William Araiza, a law professor at Brooklyn Law School, said it was the combination of actions taken by Congress in the debt ceiling deal to ensure Mountain Valley’s completion that made the move unconstitutional.

Araiza was among the law professors who joined a “friend of the court” brief supporting environmental groups’ claims that the 4th Circuit should still resolve challenges to the pipeline’s permits — despite what Congress said.

Lawmakers’ effort to draw up hyperspecific legislation and block judicial review — combined with the fact that the action only applies to approved permits — presents a problem, Araiza said. The structure, he said, would presumably allow legal challenges to permit denials, creating an unfair advantage for Mountain Valley developers in the courts.

Congress said in the debt deal provision not only that it is changing the law, but also that existing laws have been satisfied, he said.

“That really is the core of the judicial function to conclude whether certain conditions are met or not,” Araiza said. “The fact that Congress arrogated to itself that function of finding that legal requirements have, in fact, been satisfied, when you combine it with these other characteristics makes this problematic.”

Unclear precedent

Mountain Valley developers say that Supreme Court precedent backs up their claims about the authority of Congress, but legal observers say prior rulings haven’t clearly answered the question.

“Supreme Court cases are a little messy on the subject of Congress changing the law in ways that are directed toward a particular lawsuit or a particular project,” said Farber of UC Berkeley, adding that the court’s rulings on the issue haven’t fallen along typical ideological lines.

The court’s precedent on jurisdiction has been building slowly since the post-Civil War era, since such cases come up infrequently, said Virelli of Stetson University.

In the 1871 case United States v. Klein, the Supreme Court reined in governmental self-dealing by finding that Congress cannot dictate a “rule of decision” undercutting judicial independence.

“The tricky part is that although the Supreme Court has never repudiated the Klein case, there have been a handful of subsequent cases that also look like they’re the exact same thing, [and] the Supreme Court has said, ‘OK, this is not a problem,'” said Zoldan of the University of Toledo.

Araiza of Brooklyn Law School said the line between legislating and adjudicating is murky: “If Klein means anything today, then this [provision] seems to be a violation of it.”

A recent Supreme Court decision that appears to depart from Klein precedent is Patchak v. Zinke, a case involving whether the Interior Department could put a property into trust for the Gun Lake Tribe to build a casino. After an earlier Supreme Court ruling involving the land, former President Barack Obama signed a law barring litigation involving the property in question. The dispute then went back before the justices to determine whether the Obama-era law — the Gun Lake Trust Land Reaffirmation Act — violated the Constitution.

The Supreme Court in 2018 ruled in the government’s favor, finding the law was constitutional, but the case was decided in a plurality, or nonmajority, opinion, with the justices unable to settle on a consistent rationale for why the government acted legally.

“I think this is a stronger case for the government than Patchak was,” said Bruhl of William & Mary.

Farber, who called Mountain Valley’s claims “pretty compelling,” said the Mountain Valley case may be an opportunity for the Supreme Court to clarify its stance in the years since Patchak was decided and conservatives have cemented a 6-3 majority.

“I’d guess that the odds are in favor of the Supreme Court overturning the Fourth Circuit’s stay,” Farber said in an email. “But I don’t think this is a sure thing.”

Chief Justice John Roberts, for example, dissented in the Patchak case, finding the Gun Lake Act to be unconstitutional. But Roberts, a moderate conservative, also tends to vote in favor of pro-business interests and may be more likely to side with a pipeline company than an environmental group.

Mountain Valley’s application was submitted to Roberts, who is assigned to hear pleas arising out of the 4th Circuit.

Farber questioned whether the justices would wait for Mountain Valley’s case to arrive on the merits, instead of deciding the matter through the emergency docket.

“The dissent and concurring opinions in Patchak show that many of the justices have great concerns about the jurisdiction-stripping laws,” Farber said, “and they may want to hear argument rather than summarily intervening.”