Legal Sidebari

Mountain Valley Pipeline Litigation Tests
Congress’s Power to Limit Federal Court
Jurisdiction
July 21, 2023
The Mountain Valley Pipeline (Pipeline), currently under construction, is planned as a 303-mile natural
gas transmission pipeline that would link natural gas fields in West Virginia to the existing Transco
pipeline in Virginia. Mountain Valley Pipeline, LLC (MVP), the company constructing the Pipeline,
reports that the project is roughly 94% complete, but it has faced numerous permitting challenges in
federal court.
In June 2023, Congress enacted the Fiscal Responsibility Act of 2023 (Pub. L. 118-5, the FRA). Section
324 of the FRA sought to resolve the permitting issues related to the Pipeline by directing federal
agencies to issue any necessary permits or approvals and by limiting the federal courts’ jurisdiction to
hear challenges to those actions. The legislation raises legal questions about Congress’s power to regulate
federal courts in ways that affect pending legislation. Opponents of the Pipeline argue that FRA Section
324 represents congressional interference with the judicial branch that violates the constitutional
separation of powers. The federal government and MVP argue that the legislation is a valid change to the
applicable substantive law and the federal courts’ jurisdiction.
This Legal Sidebar provides an overview of recent litigation involving the Pipeline, focusing on the
separation of powers arguments related to the FRA.
Pipeline Litigation in Appalachian Voices
As outlined in a previous CRS Insight, construction and operation of the Pipeline require numerous
federal and state permits. Opponents of the Pipeline have filed multiple lawsuits challenging various
agency actions related to the project. Many of those cases have been litigated in the U.S. Court of Appeals
for the Fourth Circuit, the federal court with jurisdiction over the states where the Pipeline is being
constructed. The Fourth Circuit has previously vacated approvals by the Bureau of Land Management, the
U.S. Forest Service, the U.S. Army Corps of Engineers, and state regulators that were necessary for
construction of the Pipeline. The same panel of three Fourth Circuit judges has decided most of the cases
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related to the Pipeline, leading MVP to contend that there could be a perception of unfairness in that
venue.
Three cases that are still pending before the Fourth Circuit—consolidated under the name Appalachian
Voices v. U.S. Department of the Interior—are particularly relevant to the dispute over FRA Section 324.
The litigation in Appalachian Voices began on April 10, 2023, when a group of environmental
organizations filed a petition for review in the Fourth Circuit. The petitioners challenged the U.S. Fish and
Wildlife Service’s Biological Opinion and Incidental Take Statement (BiOp and ITS) for the Pipeline, two
elements of the interagency consultation process under the Endangered Species Act, arguing that the
agency failed to properly consider relevant factors in granting the BiOp and ITS. Later, the Wilderness
Society filed two additional petitions for review of decisions of the U.S. Forest Service and the Bureau of
Land Management granting other needed approvals for the Pipeline. MVP intervened in each of the cases
to defend validity of the challenged agency actions, and the Fourth Circuit consolidated the three cases.
The petitioners filed motions to stay the challenged agency actions pending judicial review. (A stay is a
form of temporary injunctive relief that essentially serves to pause litigation or other proceedings.) In
these cases, a stay of one or more agency approvals would mean that MVP would not be able to move
forward with construction or operation of the Pipeline while the Fourth Circuit considered the petitioners’
challenges. The federal government and MVP opposed the stay motions.
The Fiscal Responsibility Act of 2023 and Jurisdiction Stripping
On June 3, 2023, President Biden signed the Fiscal Responsibility Act of 2023. Section 324(c) of the FRA
provides:
Notwithstanding any other provision of law ... Congress hereby ratifies and approves all
authorizations, permits, verifications, extensions, biological opinions, incidental take statements,
and any other approvals or orders issued pursuant to Federal law necessary for the construction and
initial operation at full capacity of the Mountain Valley Pipeline[.]
The same subsection further directs the relevant federal agencies to “continue to maintain” relevant
approvals or orders necessary for the construction and operation of the Pipeline.
The FRA also includes language that was apparently intended to foreclose further consideration of the
Pipeline by the Fourth Circuit. Section 324(e)(1) of the FRA provides: “Notwithstanding any other
provision of law, no court shall have jurisdiction to review” actions of certain federal or state agencies
granting approvals necessary for the construction and operation of the Pipeline, “whether issued prior to,
on, or subsequent to the date of enactment of this section, and including any lawsuit pending in a court as
of the date of enactment of this section.” To the extent Pipeline opponents might challenge that
jurisdictional provision itself, Section 324(e)(2) grants the U.S. Court of Appeals for the District of
Columbia Circuit “original and exclusive jurisdiction over any claim alleging the invalidity of this section
or that an action is beyond the scope of authority conferred by this section.”
Section 324(f) of the FRA provides that Section 324 “supersedes any other provision of law ... that is
inconsistent with the issuance of any authorization, permit, verification, biological opinion, incidental
take statement, or other approval” for the MVP.
Provisions such as FRA Section 324(e) implicate Congress’s constitutional authority to establish and
regulate the lower federal courts. The constitutional separation of powers limits such regulation. In 1871,
the Supreme Court held in United States v. Klein that Congress violated the separation of powers when it
enacted legislation that limited federal court jurisdiction in a way that “prescribe[d] a rule for the decision
of a cause in a particular way.” As discussed in more detail in a CRS Report, subsequent Supreme Court
decisions have reiterated the limits announced in Klein but have distinguished that case and rejected
separation of powers challenges to other legislation stripping federal courts of jurisdiction. For example,

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the Supreme Court upheld a jurisdiction-stripping provision in 2018 in Patchak v. Zinke. Although no
opinion in Patchak gained the support of a majority of the Court, Justice Thomas’s plurality opinion
summarized this principle: “Congress violates Article III when it compels findings or results under old
law. But Congress does not violate Article III when it changes the law.”
FRA Dispute in Appalachian Voices
On June 5, 2023, MVP filed motions to dismiss the consolidated petitions for review in Appalachian
Voices for lack of jurisdiction. MVP argued that Section 324(e) of the FRA deprived the Fourth Circuit of
subject matter jurisdiction over the petitions for review. The company further contended that in Section
324(c) of the FRA, “Congress explicitly ‘ratifie[d] and approve[d]’ all federal authorizations, permits, and
other actions necessary for the construction and operation” of the Pipeline, “[n]otwithstanding any other
provision of law.” The company asserted, among other arguments, that because of that authorization, the
petitioners’ challenges to agency approvals of the Pipeline based on pre-FRA law must fail, so the cases
had become moot because the court could no longer award the petitioners’ requested relief.
On June 14, the federal government also moved to dismiss the petitions. Like MVP, the federal
defendants principally argued that Section 324(e) of the FRA stripped the Fourth Circuit of statutory
subject matter jurisdiction over the petitions and that Section 324(c) of the FRA rendered the petitions
moot.
The petitioners opposed the motions to dismiss, arguing that FRA Section 324 could not validly require
dismissal because Section 324 was unconstitutional. The petitioners relied on Klein, arguing that Section
324 violates separation of powers limits by requiring courts to decide cases in a certain way. The
petitioners recognized the recent decision upholding a jurisdiction-stripping provision in Patchak, but
they argued that the case was not binding because no reasoning earned the support of more than four
Justices. The Appalachian Voices petitioners instead asked the court to adopt the reasoning of the dissent
in Patchak, in which Chief Justice Roberts, joined by Justices Kennedy and Gorsuch, argued that
Congress impermissibly “exercises the judicial power when it manipulates jurisdictional rules to decide
the outcome of a particular pending case.”
On July 10, 2023, the Fourth Circuit issued orders in Appalachian Voices staying the relevant agency
actions during the pendency of the petition for review. As is common with orders granting or denying
temporary injunctive relief, the court’s decisions disposed of the motions for stay without written analysis
of the legal issues presented. The recognized standard for granting a stay requires the party seeking a stay
to show a substantial likelihood of success on the merits, which includes demonstrating a likelihood that
the federal courts have jurisdiction to consider the case. If the Fourth Circuit applied that standard, its
order implies that it believes that FRA Section 324 may be unconstitutional.
On July 14, 2023, MVP filed with the Supreme Court an emergency application to vacate the stays. At the
time of writing, the petitions for review and the motions to dismiss the petitions remain pending before
the Fourth Circuit.
Looking Forward and Considerations for Congress
Following the Fourth Circuit’s stay orders, construction of the Pipeline is stopped. MVP has sought
Supreme Court review of the stays, and the federal government could also seek such review. It is unclear,
however, whether the Supreme Court will resolve the jurisdictional questions about Pipeline approval at
this stage. There are several ways the Court might act on the request for emergency relief.
First, the Supreme Court could deny the emergency application, leaving the Fourth Circuit’s existing stays
in place. In that situation, the stays would likely remain in effect until the Fourth Circuit considers and
decides the merits of the legal questions presented in the petitions for review. Even if the Supreme Court

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denies the current request for emergency relief, it could still potentially consider the constitutionality of
Section 324 via a later petition for certiorari after the Fourth Circuit issues a final ruling in the case.
Second, the Court could grant the emergency application and vacate the Fourth Circuit’s stay orders,
which would likely allow Pipeline construction to continue. Supreme Court review of the stay orders
could include consideration of the constitutionality of FRA Section 324. If the Court granted the
emergency application, for example, that might indicate the Court’s view that Congress had successfully
divested the Fourth Circuit of jurisdiction over Appalachian Voices. However, the Court could also decide
to vacate the stays on other grounds—for example, by finding that the petitions for review are moot or are
likely to fail on the merits.
Whether the Supreme Court grants or denies the emergency application, review of the stay orders will
likely proceed on the Court’s non-merits docket. The Court disposes of most matters on its non-merits
docket without written opinions explaining its reasoning. Absent a Supreme Court order or opinion
addressing the constitutionality of Section 324, the Fourth Circuit would still be able to address the issue
as it considers the merits of the cases.
Third, in rare cases, the Supreme Court has treated an application for emergency relief as a petition for
certiorari and has granted certiorari before the lower court has issued a final decision in a case. For
instance, the Court recently granted certiorari before judgment in high-profile cases involving abortion
and student loan forgiveness. If the Supreme Court took that route here, it could consider the
constitutionality of FRA Section 324 before the Fourth Circuit issues any further decisions. It could also
decide whether or not to leave the Fourth Circuit’s stays in effect while it considered the cases.
Regardless of whether the Supreme Court allows Pipeline construction to continue, the Appalachian
Voices litigation will likely call on the federal courts to decide whether FRA Section 324 is constitutional.
It is therefore possible that the litigation will provide additional clarity on Congress’s power to limit the
federal courts’ jurisdiction over pending cases or otherwise change the law that applies to pending
litigation.

Author Information

Joanna R. Lampe

Legislative Attorney




Disclaimer
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