Fourth Circuit blasts Congress for undermining separation of powers

RICHMOND, Va. (CN) — The Fourth Circuit issued a scathing opinion Friday that complies with Congress' intent of giving the Washington D.C. Circuit exclusive jurisdiction of challenges to the Mountain Valley Pipeline while questioning the constitutionality of said intent.

"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," U.S. Circuit Judge Roger L. Gregory, a George W. Bush appointee stated in the opinion. "If that is so, I wonder if Section 324 is a harbinger of erosion not just to the environment but to our republic."

Environmental groups have filed dozens of lawsuits since the pipeline obtained authorization to begin construction in 2017. Until the Fiscal Responsibility Act of 2023, the Fourth Circuit had exclusive jurisdiction over these challenges under the Natural Gas Act

In April, 10 environmental groups petitioned to review a statement supporting the pipeline's completion published by the U.S. Fish and Wildlife Service. The Wilderness Society challenged the Bureau of Land Management and U.S. Forest Service's approval of necessary permits on June 1. 

Congress passed the bipartisan Fiscal Responsibility Act of 2023 on June 3, temporarily suspending the federal debt limit to avoid a default. Controversially sneaked into the act is Section 324, which expedites the pipeline's completion by instructing courts and agencies to approve all authorizations, permits and verifications. 

Section 324 gives the D.C. Circuit exclusive jurisdiction for any challenges to the provision. 

The Fourth Circuit held a hearing on July 27 to determine whether they still had jurisdiction in light of the act. During the hearing, the Supreme Court strongly indicated that the circuit court lacked jurisdiction, issuing an order vacating two stays from the Fourth Circuit that halted construction.

U.S. Circuit Judge Stephanie Thacker, a Barack Obama appointee, warned in her concurring opinion of the dangers of passing a provision that strips courts' jurisdiction to obtain a favorable outcome.

"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," Thacker wrote.

She questioned what future effects the provision will have.

 "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?" Thacker wrote. 

In his opinion, Gregory outlined the history of the separation of powers as a keystone of the republic. He clarified that the framers of the Constitution would take issue with Congress' provision.

"Section 324 is a blueprint for the construction of a natural gas pipeline by legislative fiat," Gregory wrote. "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."

Southern Environmental Law Center attorney Spencer Gall, representing the environmental groups, said the plaintiffs may take the fight to D.C.

"We stand by the argument that Congress violated the Constitution when it kicked communities out of court so it could guarantee that perennial loser Mountain Valley Pipeline would win specific pending lawsuits," Gall said in a statement. "The Fourth Circuit did not bless this gambit today and simply held that the D.C. Circuit and the Supreme Court must be the ones to confront the constitutionality of the MVP rider. We are evaluating potential next steps."

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