The Volokh Conspiracy
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Will SCOTUS Be the Mountain Valley Pipeline's MVP?
The Mountain Valley Pipeline's developers seek Supreme Court intervention to prevent the U.S. Court of Appeals for the Fourth Circuit from delaying its completion.
After years of legal and political wrangling, it appeared the Mountain Valley Pipeline was nearing completion. fewer than four miles of the 300-plus-mile project remain to be completed and Congress endorsed the pipeline's completion. Section 324 of the Fiscal Responsibility Act of 2023 expressly called for the approval of all remaining permits, ratified all prior federal agency permits, and constrained further judicial review of such permit approvals.
The U.S. Court of Appeals for the Fourth Circuit appears not to have gotten the message. Despite the fact that Congress had stripped the Fourth Circuit of any jurisdiction over cases challenging the pipeline's permits, last week the court issued two orders staying additional construction and approvals from the U.S. Forest Service and Fish & Wildlife Service.
On Friday, Mountain Valley Pipeline filed an emergency application with Chief Justice Roberts asking the Supreme Court to vacate the stays. The brief, filed by former Solicitor General Donald Verelli, explains why the Fourth Circuit's actions lacked any legal basis.
The argument that apparently convinced the Fourth Circuit to enter its stays is that Congress lacks the constitutional authority to intervene and effectively end the legal challenges to the pipeline's construction. As this academic amicus brief puts it, Congress may not "direct the result in pending litigation without amending substantive law." The problem is that Congress has substantively amended the law -- declaring these permits valid, rather than telling the Fourth Circuit to so conclude -- and deprived the Fourth Circuit of jurisdiction to consider the question (vesting such jurisdiction in the D.C. Circuit instead).
It is worth remembering that the only reason environmentalist groups have been able to challenge the Mountain Valley Pipeline in the first place is because Congress decided to impose permitting and other requirements for projects like this and further provided for judicial review of the relevant agency determinations to ensure that Congress's standards had been met. What Congress giveth, Congress may also take away. Congress was not required to allow environmentalists or anyone else to challenge whether a Forest Service or Fish & Wildlife Service decision was arbitrary and capricious or otherwise not in accordance with law. Indeed, Congress did not even need to require that projects like the Mountain Valley Pipeline obtain federal permits at all. Thus Congress is certainly free to declare that the standards Congress set forth for projects like this have been met in this particular case -- and that is what it did.
Not only is the Fourth Circuit wrong to think there is a basis for continuing to hold up the Mountain Valley Pipeline, it lacks the jurisdiction to consider the question. It is well established that Congress retains the power to shift or strip federal jurisdiction, even from pending cases, and even if that disadvantages one party to the litigation. (See, e.g., Ex parte McArdle in which the Supreme Court upheld legislation stripping the federal courts of hearing particular habeas claims, even though that doomed McArdle's habeas petition.) Such a move may seem like dirty pool, but it is well within Congress's power to do.
The legal merits of this dispute seem rather clear. The only question is whether the Supreme Court will consider the Fourth Circuit's actions to be sufficiently egregious to justify a "shadow docket" order vacating the stays or providing other extraordinary relief.
