Legal Sidebari

Mountain Valley Pipeline Litigation Tests
Congress’s Power to Limit Federal Court
Jurisdiction
Updated July 27, 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. On July 27, 2023, the Supreme Court issued an order that allowed pipeline construction to
proceed while litigation continues.
A key issue in the ongoing Pipeline litigation may be the effect of 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 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 1872,
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,
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.”

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FRA Dispute in Appalachian Voices
The litigation over the Pipeline and the enactment of the FRA brought two key issues before the Fourth
Circuit. First, petitioners challenging the Pipeline 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.
Meanwhile, MVP and the federal government filed motions to dismiss the consolidated petitions for
review in Appalachian Voices for lack of jurisdiction. MVP and the government argued that Section
324(e) of the FRA deprived the Fourth Circuit of subject matter jurisdiction over the petitions for review.
As the company described 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.” Both MVP and the government also asserted
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.
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 and 11, 2023, the Fourth Circuit issued orders 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. The
federal government supported the application, as did the House of Representatives and several Members
of Congress (as amici curiae). On July 27, 2023, the Supreme Court granted the application to vacate the
stays issued by the Fourth Circuit.
Looking Forward and Considerations for Congress
The Supreme Court’s order vacating the Fourth Circuit’s stays will allow construction of the Pipeline to
resume. The Court disposed of the application for vacatur on its non-merits docket. Like most of the
Court’s non-merits orders, the vacatur order did not include a written opinion explaining the Court’s
reasoning. While the Court may have considered the constitutionality of Section 324 in ruling on the stay
application, the order did not discuss the merits of the case, including whether Congress validly limited
federal court jurisdiction to consider challenges to the Pipeline. Notably, therefore, the Supreme Court’s
action did not require the Fourth Circuit to dismiss the petitions for review that challenge the Pipeline.

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At the time of writing, the petitions for review and the motions to dismiss the petitions remain pending
before the Fourth Circuit. The Fourth Circuit may still address the constitutionality of Section 324 as it
considers the merits of the cases. If the Fourth Circuit decides the issue, its decision would be subject to
future review by the Supreme Court. 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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