USCA4 Appeal: 23-1384 Doc: 70 Filed: 08/11/2023 Pg: 1 of 28

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1384

APPALACHIAN VOICES; WILD VIRGINIA; WEST VIRGINIA RIVERS COALITION; PRESERVE GILES COUNTY; PRESERVE BENT MOUNTAIN, a chapter of Blue Ridge Environmental Defense League; WEST VIRGINIA HIGHLANDS CONSERVANCY; INDIAN CREEK WATERSHED ASSOCIATION; SIERRA CLUB; CHESAPEAKE CLIMATE ACTION NETWORK; CENTER FOR BIOLOGICAL DIVERSITY,

Petitioners,

v.

UNITED STATES DEPARTMENT OF THE INTERIOR; DEB HAALAND, in her official capacity as Secretary of the U.S. Department of the Interior; UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the U.S. Department of Interior; CINDY SCHULZ, in her official capacity as Field Supervisor, Virginia Ecological Services, Responsible Official; MARTHA WILLIAMS, in her official capacity as Director of the U.S. Fish and Wildlife Service,

Respondents,

MOUNTAIN VALLEY PIPELINE, LLC,

Intervenor.

On Petition for Review of an Order of the Department of the Interior (CP16-10-000).

No. 23-1592

THE WILDERNESS SOCIETY,

Petitioner, USCA4 Appeal: 23-1384 Doc: 70 Filed: 08/11/2023 Pg: 2 of 28

v.

UNITED STATES FOREST SERVICE; HOMER L. WILKES, in his official capacity as Under Secretary for Natural Resources and Environment; U.S. DEPARTMENT OF AGRICULTURE; KENDERICK ARNEY, in his official capacity as Regional Forester of the Southern Region,

Respondents,

and

MOUNTAIN VALLEY PIPELINE, LLC,

Intervenor.

-------------------------------------------------------------

ROBERT C. SCOTT; GERALD E. CONNOLLY; DONALD S. BEYER, JR.; JENNIFER WEXTON; JENNIFER L. MCCLELLAN; WILLIAM D. ARAIZA; ERWIN CHEMERINSKY; CAPRICE ROBERTS, HOWARD M. WASSERMAN,

Amici Supporting Petitioner.

On Petition for Review of an Order of the Department of Agriculture.

No. 23-1594

THE WILDERNESS SOCIETY,

Petitioner,

v.

BUREAU OF LAND MANAGEMENT; DEB HAALAND, in her official capacity as Secretary of the Interior; MITCHELL LEVERETTE, in his official capacity as State Director, Bureau of Land Management, Eastern States,

Respondents,

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and

MOUNTAIN VALLEY PIPELINE, LLC,

Intervenor.

-------------------------------------------------------------

ROBERT C. SCOTT; GERALD E. CONNOLLY; DONALD S. BEYER, JR.; JENNIFER WEXTON; JENNIFER L. MCCLELLAN; WILLIAM D. ARAIZA; ERWIN CHEMERINSKY; CAPRICE ROBERTS; HOWARD M WASSERMAN,

Amici Supporting Petitioner.

On Petition for Review of an Order of the Department of the Interior. (VAES-058143-04)

Argued: July 27, 2023 Decided: August 11, 2023

Before GREGORY, WYNN, and THACKER, Circuit Judges.

Motions to dismiss granted. Judge Wynn wrote the opinion, in which Judge Gregory and Judge Thacker joined. Judge Gregory wrote a separate opinion concurring in the judgment. Judge Thacker wrote a separate opinion concurring.

Kevin William McArdle, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. Kimberley Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina; Derek Owen Teaney, APPALACHIAN MOUNTAIN ADVOCATES, Lewisburg, West Virginia, for Petitioners. Donald B. Verrilli, Jr., MUNGER, TOLLES & OLSON LLP, Washington, D.C., for Intervenor.

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WYNN, Circuit Judge:

These consolidated cases present weighty and important questions involving the

separation of powers as it relates to a project of national interest. Petitioners are

environmental groups challenging federal agency actions that will enable the final

construction and initial operation of the Mountain Valley Pipeline, a 300-plus-mile

underground pipeline that will transport natural gas from West Virginia to Virginia.

But during the pendency of this matter before this Court, Congress proactively

intervened by legislation and enacted the Fiscal Responsibility Act of 2023. Section 324

of that Act purports to ratify the agencies’ actions regarding the Mountain Valley Pipeline

and remove our jurisdiction over the underlying petitions. Armed with this new legislation

enacted specifically in their favor, Respondents—the federal agencies and the Mountain

Valley Pipeline—moved in this Court for the dismissal of the petitions.

Upon consideration of the matters before us, we must grant Respondents’ motions

to dismiss.

I.

The legal history of this matter began in 2017 when the Federal Energy Regulatory

Commission authorized the construction and operation of the Mountain Valley Pipeline.

Since its inception, the project has engendered significant public comment and generated

multiple lawsuits from environmental groups challenging federal agency actions granting

various approvals and permits necessary for the pipeline’s construction.

Up and until Congress’s very recently enacted legislation, this Court exercised

“original and exclusive” jurisdiction over these challenges under the Natural Gas Act. 15

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U.S.C. § 717r(d)(1). Under this authority, we vacated certain agency actions after finding

that the agencies failed to comply with the pertinent statutes. See Appalachian Voices v.

U.S. Dep’t of Interior,

, 265–66 (4th Cir. 2022) (discussing relevant prior

proceedings); Wild Va. v. U.S. Forest Serv.,

, 923–24 (4th Cir. 2022) (same).

Though subject to review, none of those decisions were ever disturbed by the Supreme

Court.

The present cases represent the latest such challenges to the Mountain Valley

Pipeline’s construction, which at this point is “mostly finished.” Appalachian Voices,

. On April 10, 2023, ten environmental groups petitioned for review of a

Biological Opinion and Incidental Take Statement issued for the pipeline on February 28,

2023, by the U.S. Fish and Wildlife Service. On June 1, 2023, The Wilderness Society filed

two petitions for review of Records of Decision issued by the Bureau of Land Management

and the U.S. Forest Service on May 17 and May 15, 2023, respectively, that granted the

Mountain Valley Pipeline certain required permits.

On June 3, while the cases were pending before this Court, Congress enacted the

Fiscal Responsibility Act of 2023,

Stat. 10, for the primary purpose

of temporarily suspending the federal debt limit, preventing default. But embedded in the

Act was a section containing a set of provisions regarding the Mountain Valley Pipeline,

Section 324. At the bottom line, Section 324 sought to thwart the petitions by the

environmental groups for review of the permits granted by the relevant agencies. In

essence, Congress moved well beyond the type of deference that may be accorded to

agencies under the Supreme Court’s decision in Chevron to declare virtually unreviewable

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the actions of the agencies granting permits for the pipeline’s construction. See Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

, 842–43 (1984) (discussing

Chevron deference).

Thus, under Section 324(c)(1), Congress “ratifie[d] and approve[d]” all

authorizations and approvals “issued pursuant to Federal law necessary for the construction

and initial operation at full capacity of the Mountain Valley Pipeline.” Under Section

324(c)(2), Congress “direct[ed]” the relevant agencies to “continue to maintain” those

same authorizations and approvals. Ratification is to occur “[n]otwithstanding any other

provision of law.” § 324(c).

In Section 324(e)(1), Congress provided that “[n]otwithstanding any other provision

of law, no court shall have jurisdiction to review any action taken by” certain listed

agencies “that grants” any authorization or approval “necessary for the construction and

initial operation at full capacity of the Mountain Valley 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.” Relevant to this matter,

under Section 324(e)(2), Congress carved out a specific jurisdictional exception to give 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.”

Finally, under Section 324(f), Congress provided that Section 324 “supersede[d]

any other provision of law . . . that is inconsistent with the issuance of any authorization”

necessary for the Mountain Valley Pipeline.

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Just two days after Congress enacted the Fiscal Responsibility Act, on June 5, 2023,

Mountain Valley Pipeline—the apparent beneficiary of Section 324—moved to dismiss

the underlying actions. On June 14, the federal agencies did likewise. Petitioners

responded, arguing only that Section 324 is unconstitutional.

Between July 10 and July 12, this Court consolidated the cases, expedited oral

argument on the motions to dismiss to be heard July 27, and temporarily stayed further

construction of the pipeline pending our review. 1

II.

The threshold question before us is whether Section 324 prohibits this Court from

determining if we have jurisdiction to review the petitions. In other words, does a federal

court retain jurisdiction for the limited purpose of determining whether it has jurisdiction?

The answer is simply yes. Over twenty years ago, the Supreme Court affirmed that

it is beyond dispute that “a federal court always has jurisdiction to determine its own

jurisdiction.” United States v. Ruiz,

(2002). This includes the jurisdiction

to review a statute that purports to strip jurisdiction. See Patchak v. Jewell,

(D.C. Cir. 2016) (reviewing a jurisdiction-stripping statute and concluding that the

statute divested the court of jurisdiction), aff’d Patchak v. Zinke,

(2018).

Respondents correctly acknowledged as much at oral argument, agreeing that it is

1 On July 27—while this Court was hearing oral argument on the motions to dismiss—the Supreme Court entered an order vacating the temporary stays.

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permissible for us to hold a hearing on the pending motions as we carefully consider the

scope of our jurisdiction under Section 324.

Having done so, we conclude that Congress has eliminated our jurisdiction over the

underlying petitions in two ways.

A.

First, Section 324(c) “ratifie[d] and approve[d]” all existing authorizations and

approvals necessary for the Mountain Valley Pipeline and “direct[ed]” the respective

agencies to “continue to maintain” those authorizations and approvals. Ratification

occurred “[n]otwithstanding any other provision of law.” 2 Section 324(f) further provided

that Section 324 “supersede[d] any other provision of law. . . that is inconsistent with the

issuance of any . . . approval for the Mountain Valley Pipeline.” 3

2 In full, Section 324(c) provided:

(c) APPROVAL AND RATIFICATION AND MAINTENANCE OF EXISTING AUTHORIZATIONS.—Notwithstanding any other provision of law—

(1) 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; and

(2) Congress hereby directs the Secretary of the Army, the Federal Energy Regulatory Commission, the Secretary of Agriculture, and the Secretary of the Interior, and other agencies as applicable, as the case may be, to continue to maintain such 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. 3 In full, Section 324(f) provided:

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There is no dispute that the agency actions Petitioners challenge in the underlying

petitions fall within the ambit of Section 324(c). Prior to the enactment of Section 324(c),

this Court would have had to determine if those approvals complied with the relevant

environmental laws. Now, Congress has ratified those approvals “[n]otwithstanding” those

other laws. § 324(c). In doing so, it has necessarily amended the legal standards that

previously applied.

It is well settled that Congress has the power to ratify agency action. See United

States v. Heinszen & Co.,

(1907) (describing Congress’s “power of

ratification as to matters within [its] authority” as “elementary”); Patchak,

(Breyer, J., concurring) (observing that there is “no substantial argument” that

“Congress act[s] unconstitutionally by ratifying [agency] actions”). When it does so,

Congress may not impermissibly tell this Court how to apply existing law. But it may

provide a new standard—here, Section 324(c)—and instruct this Court to apply that new

standard to the case before us. That permissible exercise of Congress’s legislative powers

does not infringe Article III. See Bank Markazi v. Peterson,

, 225 n.17 (2016)

(noting that Congress infringes Article III when it “direct[s] the court how pre-existing law

applies to particular circumstances” but not when it creates “new substantive law” that a

court must apply even to pending cases).

(f) EFFECT.—This section supersedes any other provision of law (including any other section of this Act or other statute, any regulation, any judicial decision, or any agency guidance) that is inconsistent with the issuance of any authorization, permit, verification, biological opinion, incidental take statement, or other approval for the Mountain Valley Pipeline.

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To be sure, courts considering similar challenges to statutes with similar language

have generally upheld the statutes, reasoning that Congress approving agency action

“notwithstanding” other law does not violate the separation of powers because Congress

has changed the law, not directed courts to apply existing law. See, e.g., Friends of Animals

v. Jewell,

(D.C. Cir. 2016) (upholding statute directing agency to

“reissue” a rule “without regard to any other provision of statute or regulation that applies

to issuance of such rule”); Consejo de Desarrollo Economico de Mexicali, A.C. v. United

States,

(9th Cir. 2007) (“[W]hen Congress has directed immediate

implementation ‘notwithstanding any other provision of law,’ we have construed the

legislation to exempt the affected project from the reach of environmental statutes which

would delay implementation.”); Nat’l Coal. to Save Our Mall v. Norton,

(D.C. Cir. 2001) (upholding statute directing that the World War II Memorial “shall

be constructed expeditiously” consistent with existing plans and permits

“[n]otwithstanding any other provision of law”).

Accordingly, because Congress has ratified the challenged agency actions, there is

no longer a live controversy and the underlying petitions are moot. We therefore lack

jurisdiction over them. Brooks v. Vassar,

(4th Cir. 2006).

B.

Second, Congress also eliminated our jurisdiction over the underlying petitions

through Section 324(e)(1). That section provided, in relevant part, that “[n]otwithstanding

any other provision of law, no court shall have jurisdiction to review any action taken by”

specified agencies “that grants” any authorization or approval “necessary for the

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construction and initial operation at full capacity” of the pipeline, including “any lawsuit

pending in a court as of the date of enactment of this section.” 4

The Constitution grants Congress the express power to create lower federal courts

in the first instance, see U.S. Const. Art. I, § 8, cl. 9, which includes the “lesser power to

‘limit the jurisdiction of those Courts,’” Patchak,

(plurality op.) (quoting

United States v. Hudson,

(1812)); see Sheldon v. Sill,

(1850) (noting that lower federal courts “can have no jurisdiction but such as the statute

confers”). Provided it does not violate other constitutional provisions, Congress is widely

seen to enjoy broad control over the jurisdiction of the federal courts. Patchak,

(plurality op.).

4 In full, Section 324(e) provided:

(e) JUDICIAL REVIEW.—

(1) Notwithstanding any other provision of law, no court shall have jurisdiction to review any action taken by the Secretary of the Army, the Federal Energy Regulatory Commission, the Secretary of Agriculture, the Secretary of the Interior, or a State administrative agency acting pursuant to Federal law that grants an authorization, permit, verification, biological opinion, incidental take statement, or any other approval necessary for the construction and initial operation at full capacity of the Mountain Valley Pipeline, including the issuance of any authorization, permit, extension, verification, biological opinion, incidental take statement, or other approval described in subsection (c) or (d) of this section for the Mountain Valley 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.

(2) The United States Court of Appeals for the District of Columbia Circuit shall have 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.

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The exact confines of Congress’s power over jurisdiction are still being debated,

especially when it comes to jurisdiction-stripping efforts that appear to dictate the outcome

of pending litigation. This debate is perhaps most clearly seen in the recent case of Patchak

v. Zinke. In that case, a landowner sued the Secretary of the Department of the Interior,

arguing that the agency lacked statutory authority to take certain land into trust for a Native

American tribe.

. While the case was pending, Congress passed the Gun Lake

Act, which stripped federal courts of jurisdiction to hear any action “relating to” the

property.

.

A fractured Supreme Court upheld the Gun Lake Act. A four-Justice plurality

(Justice Thomas, joined by Justices Breyer, Alito, and Kagan) did so based on the

jurisdiction-stripping provision alone, concluding that “[s]tatutes that strip jurisdiction

change the law for the purpose of Article III just as much as other exercises of Congress’

legislative authority.”

(cleaned up). 5 But this view did not command a majority.

And it was expressly rejected by four other Justices. See

(Chief Justice Roberts,

joined by Justices Kennedy and Gorsuch, dissenting) (“Congress cannot, under the guise

of altering federal jurisdiction, dictate the result of a pending proceeding.”);

(Justice Sotomayor, concurring in the judgment) (“[A]n Act that merely deprives federal

courts of jurisdiction over a single proceeding is not enough to be considered a change in

5 Justices Ginsburg and Sotomayor voted to uphold the statute based on their view that the Gun Lake Act restored the federal government’s immunity from suit. Patchak,

(Justice Ginsburg, joined by Justice Sotomayor, concurring in the judgment).

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the law and . . . any statute that portends to do so should be viewed with great

skepticism.”). 6

Petitioners in this case vehemently argue that the jurisdiction-stripping provision in

Section 324(e) suffers from the same constitutional infirmities that at least four Justices

saw as existing with the statute in Patchak. Specifically, Petitioners argue that Section

324(e) “manipulates” jurisdiction to direct entry of judgment for a particular party, the

Mountain Valley Pipeline, in pending litigation. Response Br. at 17; see Patchak, 138 S.

Ct. at 919–20 (Roberts, C.J., dissenting) (expressing the view that Congress impermissibly

“exercises the judicial power when it manipulates jurisdictional rules to decide the outcome

of a particular pending case”).

But regardless of the merits of Petitioners’ arguments, this Court is not the one to

consider them. That is because Section 324(e)(2) vests the D.C. Circuit with “original and

6 As an aside, we note that the statute at issue in Patchak, in addition to the jurisdiction-stripping provision, also contained a ratification provision that “reaffirmed” the property as “trust land” and “ratified and confirmed” the agency’s actions in taking that land into trust. Patchak,

(plurality op.). The plurality opinion, however, expressly declined to focus on the ratification provision because Patchak did not argue that it was unconstitutional.

at 904 n.2. But in a sole concurrence, Justice Breyer stated that he would have upheld the statute on ratification alone: “The petitioner does not argue that Congress acted unconstitutionally by ratifying the Secretary’s actions . . . , and I am aware of no substantial argument to that effect.”

(Breyer, J., concurring) (citing Heinszen, 206 U.S. at 382–83). The dissenters appear to have agreed, Chief Justice Roberts writing that “if [the ratification provision] is constitutional, it is because the provision establishes new substantive standards and leaves the court to apply those standards in the first instance.”

(Roberts, C.J., dissenting). In other words, four Justices in Patchak seemingly believed that Congress ratifying agency action in a manner virtually identical to Section 324(c) is a lawful exercise of legislative power.

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exclusive jurisdiction over any claim alleging the invalidity” of Section 324. This

encompasses Petitioners’ arguments about the constitutionality of that section.

Petitioners have pointed to no authority that prohibits Congress from vesting a

particular court (here, the D.C. Circuit) with jurisdiction over a class of claims (here,

challenges to the constitutionality of Section 324). Rather, Petitioners argue that, despite

the plain language of Section 324(e)(2), this Court can nevertheless rule on the merits of

their constitutional arguments. In support, Petitioners interpret the word “claim” to refer to

a “cause of action” and the command that the D.C. Circuit “shall have” “original”

jurisdiction as signaling prospective application only. In other words, for Petitioners,

Section 324(e)(2) is merely a “venue provision that prescribes where post-enactment

claims directly challenging Section 324 must be filed originally.” Response Br. at 6.

We disagree. As Respondents point out, “claim” has a natural reading much broader

than just a cause of action, referring to any argument or allegation. See, e.g., Biden v.

Nebraska,

, 2372 (2023) (discussing “the EPA’s claim that the Clean Air

Act authorized it to impose a nationwide cap on carbon dioxide emissions”) (emphasis

added). And the grant of “original” jurisdiction merely signals that the D.C. Circuit can

hear such arguments about the constitutionality of Section 324 in the first instance, without

a district court first weighing in.

Statutory context confirms this understanding. See Lynch v. Jackson,

(4th Cir. 2017) (“[T]he words of a statute must be read in their context and with a view

to their place in the overall statutory scheme.” (quoting Davis v. Mich. Dep’t of Treasury,

(1989)). Section 324 clearly evinces a “statutory scheme” to withdraw

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jurisdiction from all courts to review certain agency actions related to the Mountain Valley

Pipeline, while giving the D.C. Circuit “exclusive” jurisdiction for any challenges to

Section 324 itself. 7

Accordingly, we conclude that Section 324(e)(1) strips this Court of jurisdiction to

consider the underlying petitions, and that Section 324(e)(2) strips this Court of jurisdiction

to consider Petitioners’ arguments about the constitutionality of Section 324. Those

arguments must be heard, if at all, by the D.C. Circuit.

* * *

In sum, with Section 324, Congress removed our jurisdiction in a way that mandates

dismissal of the underlying petitions, which challenge agency actions that grant necessary

approvals for the completion of the Mountain Valley Pipeline. Indeed, “no court” has

jurisdiction to review these approvals, see § 324(e)(1), including the D.C. Circuit, whose

jurisdiction is limited to “claim[s] alleging the invalidity of [Section 324] or that an action

is beyond the scope of authority conferred by [Section 324],” § 324(e)(2).

But Congress left in place the general grant of jurisdiction to this Court under the

Natural Gas Act over challenges to future pipelines or other natural gas facilities in this

7 This conclusion is further confirmed by reference to the Natural Gas Act, which granted this Court its “original and exclusive jurisdiction over any civil action” related to the Mountain Valley Pipeline. 15 U.S.C. § 717r(d)(1) (emphasis added). In contrast, Section 324 grants the D.C. Circuit “original and exclusive jurisdiction over any claim alleging the invalidity” of Section 324. § 324(e)(2) (emphasis added). Courts “usually presume differences in language . . . convey differences in meaning,” especially where Congress has enacted statutes covering the same subject. See Wis. Cent. Ltd. v. United States,

(2018) (citation omitted).

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circuit, 15 U.S.C. § 717r(d)(1), as well as future challenges to operations of the Mountain

Valley Pipeline not covered by the express terms of Section 324.

For example, at oral argument counsel for the Mountain Valley Pipeline provided

the hypothetical of a new “spur” on the pipeline that was not covered by the original

approvals, agreeing that a challenge to that spur would fall outside the scope of Section

324. Oral Arg. at 25:18–32, available at https://www.ca4.uscourts.gov/OAarchive/

mp3/23-1384-20230727.mp3. And counsel for the federal agencies agreed that this Court

would be free to hear a future case involving the operation of the pipeline—e.g., if a pipe

exploded or leaked—because such a challenge would not be to an “approval” “necessary”

for the “construction and initial operation at full capacity” of the pipeline as required by

the text of Section 324. Id. at 1:18:10–1:19:01; see § 324(e)(2).

We save such challenges for another day. Here, Congress has removed our

jurisdiction to hear the merits of the present petitions. Petitioners’ sole contention in

response to the motions to dismiss was that Section 324 was unconstitutional, a claim that

can only be heard by the D.C. Circuit. Therefore, the motions to dismiss must be granted

for lack of jurisdiction.

III.

For the foregoing reasons, we grant Respondents’ motions to dismiss.

DISMISSED

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GREGORY, Circuit Judge, concurring in judgment:

I agree with my colleagues’ assessment that we must dismiss these cases for want

of jurisdiction. As they rightly assert, our authority under Article III extends in the typical

case to an evaluation of our jurisdiction to hear the underlying dispute. That inquiry

necessarily includes any question of the validity of a statute that intends to withdraw our

jurisdiction. But Section 324 of the Fiscal Responsibility Act is not the typical statute.

Section 324(e)’s jurisdictional bar not only purports to withdraw this Court’s consideration

of the underlying agency actions. It also forbids us from deciding what the Constitution

has to say about Section 324 itself. For that task, Congress entrusted the D.C. Circuit (and

presumably the Supreme Court upon a writ of certiorari) alone. I join the majority in

abiding Congress’s wishes in that regard.

But, where Section 324’s text curtails this Court’s judicial authority, the provision’s

peculiar nature (to say nothing of the burden it has placed upon these proceedings) invites

exposition. Among its smattering of edicts are Congress’s ratification and approval of any

agency action “necessary for the construction and initial operation at full capacity of the

Mountain Valley Pipeline,” § 324(c)(1), its directions to various executive agencies to

maintain those approvals, § 324(c)(2), its withdrawal of judicial review over those same

agency actions—including in pending lawsuits—§ 324(e)(1), and its intention that the D.C.

Circuit “have original and exclusive jurisdiction over any claim alleging the invalidity” of

Section 324 or any action related to its pronouncements, § 324(e)(2). By all accounts,

Congress went to such lengths to ensure the Mountain Valley Pipeline’s “timely”

construction as a matter of “national interest.” § 324(b). “To that judgment we owe all

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deference, saving only what we owe to the Constitution.” Yakus v. United States,

(1944) (Rutledge, J., dissenting).

Courts maintain an enduring “duty to evaluate the constitutionality of legislative acts”

so as to ensure “that an act of the legislature[] [is not] repugnant to the constitution” and

therefore “void.” Moore v. Harper,

, 2079–80 (2023) (citation omitted). I

agree with Judge Thacker’s observation on that score: “Congress has tipped the balance of

power in its favor given that this provision requires us to allow another co-equal court to

answer questions central to our own jurisdictional inquiry.” Post at 23. Indeed, that

sweeping result appears to leave us not with “new substantive law” to apply, Bank Markazi

v. Peterson,

, 225 n.17 (2016), nor even our constitutional obligation to decide

the scope of our own province. Section 324 is instead a mandate to enforce its will “without

regard for [its] validity.” Yakus,

(dissenting opinion).

“Upon this point a page of history is worth a volume of logic.” New York Trust Co.

v. Eisner,

(1921). We have much to learn from the history recounted by

Chief Justice Roberts’s dissenting views from the majority opinion in Bank Markazi and

the plurality opinion in Patchak v. Zinke,

(2018). I expound upon it to place

emphasis on the central role the separation of powers plays in our republic.

During the founding era, state constitutional structures served as something of a

proving ground to distill the principles that would form the core of our national

Constitution. In those early days, state constitutions lacked “structural mechanisms to

check the dominant legislatures.” Robert F. Williams, The State Constitutions of the

Founding Decade: Pennsylvania’s Radical 1776 Constitution and Its Influences on

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American Constitutionalism,

, 547–548 (1989). Unsurprisingly,

then, many legislatures “functioned as courts of equity of last resort, hearing original

actions or providing appellate review of judicial judgments.” Plaut v. Spendthrift Farm,

Inc.,

(1995). What’s more, “they routinely intervened in cases still

pending before courts,” granting all manner of judicial relief. Bank Markazi,

(Roberts, C.J., dissenting); see also, e.g., Judicial Action by the Provincial Legislature

of Massachusetts Acts and Resolves of the Province of Massachusetts Bay,

, 208 n.1 (1901) (detailing the ways in which the Massachusetts legislature

“act[ed] in a judicial capacity, sometimes trying causes in equity, sometimes granting

equity powers to some court of the common law for a particular temporary purpose”).

Those proceedings often “legislat[ed] for individuals, and for particular cases . . . much too

frequent[ly].” Vermont State Papers 1779–1786, 542 (W. Slade ed. 1823).

Consequently, our independent judiciary “in large measure, reflects a reaction

against . . . the blending of state legislative and judicial authority” seen rampant among the

pre-framing states. John F. Manning, Response, Deriving Rules of Statutory Interpretation

from the Constitution,

, 1663 (2001). Observing the status quo

ante in Virginia, Thomas Jefferson complained that Virginia’s assembly had assumed the

“legislative, executive, and judiciary” functions, in what he termed “elective despotism.”

Thomas Jefferson, Notes on the State of Virginia 170–71 (2nd ed.). He advocated instead

for a society “in which the powers of government should be so divided and balanced among

several” branches.

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James Madison, also remarking on the Virginia experience, lamented that the

assembly, “in many instances, decided rights which should have been left to judiciary

controversy” despite the state’s constitutional declaration “that the three great departments

ought not to be intermixed.” The Federalist No. 48, at 258 (G. Carey & J. McClellan eds.

2001). He reported much the same of Pennsylvania.

(“[C]ases belonging to the

judiciary department [were] frequently drawn within legislative cognizance and

determination.”). In view of all this, Madison concluded that “projects of usurpation by

either of [the executive or legislative departments] would immediately betray and defeat

themselves.”

at 257–58. “Were the power of judging joined with the legislative,” he

cautioned, “the life and liberty of the subject would be exposed to arbitrary control.” The

Federalist No. 47, at 251–52. Alexander Hamilton agreed: “all possible care is requisite to

enable [the judicial department] to defend itself against . . . attacks” from the legislative and

executive departments. The Federalist No. 78, at 402. That is because “there is no liberty,

if the power of judging be not separated from the legislative and executive powers.”

The Constitution focuses on the structure and distribution of responsibility among

the three branches of federal government. The first three articles of the Constitution

manifest the division sought by its signatories. Inherent in those provisions of power is the

basic concept that each branch “exercise[s] . . . the powers appropriate to its own

department,” and no branch can “encroach upon the powers confided to the others.”

Kilbourn v. Thompson,

(1881). Thus, the notion that “[t]he judicial

power [is] the Judiciary’s alone,” Bank Markazi,

(Roberts, C.J.,

dissenting), is an “unambiguously enunciate[d] . . . fundamental principle” that must “be

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jealously guarded,” Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,

(1982) (plurality opinion).

The separation of powers is therefore the keystone holding our republic together.

That formidable credo “safeguards the role of the Judicial Branch in our tripartite system.”

Commodity Futures Trading Comm’n v. Schor,

(1986). It ensures that

no president mistakes the people of this country for royal subjects. Comm. on Judiciary,

United States House of Representatives v. McGahn,

, 213 (D.D.C.

2019) (“Stated simply, the primary takeaway from the past 250 years of recorded American

history is that Presidents are not kings.”). And it is what binds the courts as Congress’s

“faithful agents.” Amy Coney Barrett, Substantive Canons and Faithful Agency,

, 111, 163 (2010). To be sure, then, judicial review “can no more be shared

with another branch than the Chief Executive, for example, can share with the Judiciary

the veto power, or the Congress share with the Judiciary the power to override a

Presidential veto.” Stern v. Marshall,

(2011) (cleaned up). We must

therefore practice vigilance against temptations to “elid[e] these boundaries,” lest we risk

“undermin[ing] the rule of law and diminish[ing] liberty.” Neil Gorsuch, A Republic, If

You Can Keep It 43, 61 (2019).

What does Section 324 say about the rule of law today and the history from which

it has taken root? The petitioners in these cases, the “inferior Courts,” and Congress alike

depend on the answer to that question. And the answer depends, in turn, on the fate of

Section 324. Is it simply a change in the law? Or is it an instruction requiring that “the

court must deny to itself the jurisdiction” originally granted to it by Congress “because and

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only because its decision, in accordance with settled law,” is averse to the Mountain Valley

Pipeline and favorable to its opponents? United States v. Klein,

(1871).

Those who celebrate Congress’s decision to pass Section 324 into law, no less than those

who condemn it, may be forgiven for their judgments because the separation between the

legislative and judicial branches presently lacks fortification. See Ante at 12–13 (detailing

the Supreme Court’s “fractured” decision in Patchak).

There can be no mistake, however, that Section 324 is a blueprint for the

construction of a natural gas pipeline by legislative fiat. If that provision is likewise

constitutionally sanctioned, then Congress will have found the way to adjudicate by

legislating for particular cases and for particular litigants, no different than the

governmental excesses our Framers sought to avoid. For that reason, I fear Congress has

employed this Court’s constitutionally directed deference to legislative prerogatives to

undermine the Constitution and, in the process, it has made the Court an accessory to its

deeds. If that is so, I wonder if Section 324 is a harbinger of erosion not just to the

environment, but to our republic. That, only our Supreme Court can decide.

22 USCA4 Appeal: 23-1384 Doc: 70 Filed: 08/11/2023 Pg: 23 of 28

THACKER, Circuit Judge, concurring:

I join the majority opinion in upholding Section 324 because that is what the law

requires.

As the opinion explains, Congress has authority both to change the substantive law

applicable to pending litigation and to vest “a particular court (here, the D.C. Circuit) with

jurisdiction over a class of claims (here, challenges to the constitutionality of Section 324).”

Maj. Op. at 14. While I join the conclusion that Congress has acted within its legislative

authority in enacting Section 324(e)(2), I write separately because Congress’s use of its

authority in this manner threatens to disturb the balance of power between co-equal

branches of government. Such exercises of the legislative authority “should be viewed

with great skepticism.” Patchak v. Zinke,

(2018) (Sotomayor, J.,

concurring in judgment).

By restricting claims regarding the constitutionality of Section 324 to only the Court

of Appeals for the District of Columbia, Congress has tipped the balance of power in its

favor given that this provision requires us to allow another co-equal court to answer

questions central to our own jurisdictional inquiry. Here, Petitioners challenged the

motions to dismiss by arguing that Section 324 is unconstitutional, and therefore its

jurisdiction stripping provision, Section 324(e)(1), is ineffective. In any other

circumstance, we would resolve the motions to dismiss by deciding the underlying

jurisdictional question. But here, Congress enacted Section 324(e)(2) as an end run around

our judicial decision-making -- no doubt motivated at least in part because of the view of

some in Congress that the pipeline would be finished today if it weren’t for the rulings by

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the Fourth Circuit. 1 Instead of deciding the question for ourselves, we are forced to allow

the D.C. Circuit, and only the D.C. Circuit, to decide whether Section 324 is constitutional.

In turn, the only question for this court is whether the D.C. Circuit provision itself is

constitutional.

We limit our inquiry to that question because we have determined we are bound to

do so, but the judicial branch should proceed with caution in scenarios like this one. As

Judge Wynn asked at oral argument in reference to the idea that Congress can alter pending

litigation through jurisdiction stripping alone, “Where does it go? Where else is it going to

show back up[,] maybe in a different environment?” Oral Arg. at 53:30–53:32. Can

Congress, with particular pending litigation in mind, strip a particular court of jurisdiction

to hear a certain type of cases when it disagrees politically with the view of the law that

court has taken in the past? Can Congress punish courts for rulings that it views as

“political” or “activist” by stripping them of jurisdiction over similar cases? Can it then

insulate those decisions from further judicial review by enacting a provision like Section

324(e)(2)? Indeed, can Congress go so far as to usurp the role of the Supreme Court? We

appear to be inching close to the line. But as it stands, we have no clear guidance from the

Supreme Court on where the line between legislative and judicial power lies, especially

when Congress acts for the purpose of influencing pending litigation or even going so far

as to pick a winner in that pending litigation.

A contrary view might be that the pipeline could be finished today had MVP and 1

Respondents followed all of the necessary laws and regulations to get it done.

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While Chief Justice Roberts, joined by Justices Kennedy and Gorsuch, has

explained that he “would hold that Congress exercises the judicial power when it

manipulates jurisdictional rules to decide the outcome of a particular pending case,”

Patchak, 138 S. Ct. at 919–20 (Roberts, C.J., dissenting), four other justices have held that

“[s]tatutes that strip jurisdiction ‘change the law’” and are permissible even when they

decide pending litigation,

(Thomas, J.). And, recently, while acknowledging that

“. . . Congress can regulate various aspects of what the Supreme Court does,” Justice Kagan

noted, “Can Congress do anything it wants? Well, no. . . . There are limits here, no doubts.”

Josh Gerstein, Kagan enters fray over Congress’ power to police Supreme Court, Politico

(Aug. 3, 2023), https://perma.cc/WF6H-QV8K;

https://www.politico.com/news/2023/08/03/kagan-enters-fray-over-congress-power-to-

police-supreme-court-00109770?cid=apn (last visited Aug. 6, 2023).

This case makes clear that the line is a fine one and perhaps we are getting far too

close to tipping the balance of power. “What is the limiting principle?. . . When will the

Supreme Court give us an opinion that lays it out clearly?” Oral Arg. at 52:40–53:45.

There must be a firm limit on Congress’s intrusion into the judicial branch.

Additionally, I am compelled to set the record straight with regard to some of the

outside rhetoric that has been spewed in the midst of our work on these cases. My

colleagues and I are not politicians or newspaper editorialists. We are judges. As my good

colleague Judge Wynn noted during oral argument:

Judge Wynn: It’s something I think that unfortunately is being lost in midst of all this hyperbole that is going on. There needs to be a calmness of understanding

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that we’re just doing our level best to do our job and no more.

Mr. Verrilli (counsel for MVP): Yes, we fully-

Judge Wynn: And I think you fully understand that.

Mr. Verrilli (counsel for MVP): We appreciate that, Your Honor.

Oral Arg. at 15:43–16:00.

In response to the passage of Section 324 on June 3, 2023, both Mountain Valley

Pipeline, on June 5, and the federal agency Respondents, on June 14, filed motions to

dismiss, arguing that in light of Section 324, this court no longer possesses jurisdiction

over the pending litigation. Briefing on those motions was completed on July 10. Given

the significance of the case and the importance of the issues involving the separation of

powers, on July 12 we scheduled the motions for oral argument and expedited the timing

of such argument. In other words, we set out to not only do our jobs, but to do so

expeditiously. Yet, we have been variously referred to by certain media and politicians as

overstepping, activist, alarming, willful, ignoring the law, and a judicial hellhole. Some

have gone so far as to say that we are without jurisdiction to even hold a hearing and rule

on the motions to dismiss. Wrong.

Although Congress certainly has authority to pass laws impacting federal court

jurisdiction, no branch of government in our democracy possesses all powerful authority.

That is basic Civics 101. We have three separate but co-equal branches of government:

the legislative, executive, and judiciary. Congress makes the law, the executive enforces

the law, and the judiciary interprets the law. Although Congress may act to strip federal

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court jurisdiction, that is not the last word on the matter. The courts still have a role to

play. As the majority opinion lays out, “The threshold question before us is whether

Section 324 prohibits this Court from determining if we have jurisdiction to review the

petitions. In other words, does a federal court retain jurisdiction for the limited purpose of

determining whether it has jurisdiction?” Maj. Op. at 7.

It should go without saying that political pundits certainly do not get to decide

whether our court has jurisdiction or when we can hold a hearing. We do. The Supreme

Court has clearly stated that “a federal court always has jurisdiction to determine its own

jurisdiction.” United States v. Ruiz,

(2002); Maj. Op. at 7. Indeed,

Mountain Valley Pipeline and the federal agency Respondents themselves recognize as

much:

Judge Thacker: Because we have to determine our own jurisdiction. And you agree it’s always our role to determine our own jurisdiction, right?

Mr. Verrilli (counsel for MVP): I agree with that, your honor.

...

Judge Wynn: You are saying this hearing is permissible for a limited purpose?

Mr. Verrilli (counsel for MVP): Yes. Absolutely.

Judge Wynn: It is not one that is without authority, it is not one at which we don’t have jurisdiction to have this hearing.

Mr. Verrilli (counsel for MVP): Absolutely right. Yes, we certainly agree with that.

...

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Judge Thacker: Yes, particularly when Mountain Valley Pipeline made the motion to dismiss that brought us here.

Mr. Verrilli: Yes, absolutely. We are completely in agreement.

Oral Arg. at 14:37–45; 15:10–24; 16:01–10.

With a healthy respect for the bedrock principle of the separation of powers -- but

with a wary eye toward a potential improper imbalance of power -- today I join my

colleagues in granting the motions to dismiss because that is what the law requires.

28