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Constitution Daily

Did Congress Invade the Judicial Power to Protect a Pipeline?

A political deal to secure the vote of a Democratic senator in the recent debt ceiling battle has teed up a U.S. Supreme Court fight over the authority of Congress to strip federal court review of a class of cases.

The constitutional question, which the justices may or may not shed light on, is whether, as an 1872 Supreme Court said, “Congress inadvertently passed the limit which separates the legislative from the judicial power.”

The debt ceiling deal was sought by West Virginia Senator Joe Manchin on behalf of the construction of a 303-mile natural gas pipeline by Mountain Valley Pipeline. The project will deliver gas to existing pipelines and others along its route in the Southeast and Mid-Atlantic regions.

During the last six years, the construction project has been the target of dozens of lawsuits by environmentalists and others. The U.S. Court of Appeals for the Fourth Circuit, which includes the state of West Virginia, has sent federal agencies with permit authority back to the drawing board numerous times. Despite those many delays, the project is mostly completed. What remains is a 3.5-mile stretch of the pipeline that would cross the federally owned Jefferson National Forest.

Senator Manchin won the inclusion of language in the debt-ceiling legislation that would effectively end any further delays. The debt ceiling act includes Section 324, which Congress entitled, “Expediting Completion of the Mountain Valley Pipeline.”

Section 324 basically does two things. It ratifies all approvals or orders necessary for construction and initial operation of the pipeline. That ratification supersedes any provision of law that is inconsistent with any previous or current action involving the pipeline. The section also states that no court has jurisdiction to review actions by federal agencies authorizing the construction and operation.

Finally, Section 324 has one exception to its stripping of federal court jurisdiction over pipeline matters. It gives exclusive jurisdiction to the U.S. Court of Appeals for the D.C. Circuit over any challenge to the constitutionality of Section 324.

Before Section 324 was enacted, the Wilderness Society and Appalachian Voices had three petitions for review pending before the Fourth Circuit and requests for stays of the construction pending review of their petitions. After Section 324 was enacted, Mountain Valley and the Biden Administration moved quickly in the Fourth Circuit to dismiss all three petitions because, they argued, the court had no jurisdiction in light of Section 324.

The environmental groups fought the dismissal requests by arguing that Section 324’s withdrawal of jurisdiction was unconstitutional. The Fourth Circuit granted their motions for stays and scheduled argument on the pending petitions and motions for dismissal on July 27.

What Is the Question at the Supreme Court?

The Fourth Circuit’s actions triggered emergency applications to the Supreme Court by Mountain Valley Pipeline and the Biden Administration.

In the Supreme Court, Mountain Valley and the Biden Administration are asking the justices to vacate the stay orders and to dismiss the three petitions for review.

“The court of appeals’ stay orders flew in the face of this recent, on-point, and emphatic congressional command that the remaining construction of the Mountain Valley Pipeline must proceed without further delay,” Mountain Valley’s lawyer told the justices.

In the lower courts, the environmental groups have argued that Section 324 is unconstitutional because it invades the role of the judiciary by dictating the outcome of the pipeline case.

Article III of the Constitution authorizes Congress to determine what classes of “cases” or “controversies” our courts have jurisdiction to review. The exceptions clause also gives Congress the power to make “exceptions” and “regulations” to the Supreme Court’s appellate jurisdiction. Scholars and others have raised concerns at times about how Congress has used that authority apparently to influence particular litigation.

The environmental groups in the pipeline litigation have relied heavily on the Supreme Court’s 1872 decision in United States v. Klein.

Klein was a Reconstruction-era case involving legislation altering the presidential pardon power. The case is generally considered to stand for the proposition that Congress may not alter appellate court jurisdiction in order to dictate a “rule of decision.” Doing so would undermine the independence of the judiciary and violate the Constitution’s separation of powers.

However, Mountain Valley and the government argue that the Supreme Court in two fairly recent decisions has narrowed Klein. While those decisions agree that Congress cannot dictate how a court rules in a particular case, Congress may amend the substantive law of a case in a way that affects the outcome.

The most recent decision, Patchak v. Zinke, was a 4-2-3 fractured ruling that leaves unresolved questions.

The government’s lawyer argues in the emergency application that Section 324 changes the relevant legal standard governing jurisdiction over a category of cases—a power that Congress has under Articles I and III.

“Indeed, this Court’s decisions since Klein ‘make clear that [Klein’s] prohibition does not take hold when Congress ‘amends applicable law.’ Those decisions have ‘dispelled’ all ‘lingering doubts’ about whether, as here, ‘Congress may amend the law and make the change applicable to pending cases, even when the amendment is outcome determinative,’” she tells the justices.

Because this case comes to the court as an emergency application, part of the so-called “shadow docket,” the justice may say little or nothing about the underlying issue. But a ruling in favor of Mountain Valley and the government would be an indication of the court’s view of the merits of the environmental groups arguments.

Regardless of the outcome of this application, it will leave unresolved, like the fractured Patchak decision, the outer limit of Congress’ authority to enact legislation that amends the “applicable” or “substantive” law relevant to particular cases without, as the Klein court said, passing “the limit which separates the legislative from the judicial power.”




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