Voices v. U.S. Dep't of the Interior

78 F.4th 71

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.

The Wilderness Society, Petitioner, 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.

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,

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.

No. 23-1384

No. 23-1592

No. 23-1594

United States Court of Appeals, Fourth Circuit

Argued: July 27, 2023

Decided: August 11, 2023

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

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

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

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.

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.

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 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, 25 F.4th 259, 265-66 (4th Cir. 2022) (discussing relevant prior proceedings); Wild Va. v. U.S. Forest Serv., 24 F.4th 915, 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, 25 F.4th at 282. 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, Pub. L. No. 118-5, 137 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 the actions of the agencies granting permits for the pipeline's construction. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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.

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, 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). This includes the jurisdiction to review a statute that purports to strip jurisdiction. See Patchak v. Jewell, 828 F.3d 995, 1001 (D.C. Cir. 2016) (reviewing a jurisdiction-stripping statute and concluding that the statute divested the court of jurisdiction), aff'd Patchak v. Zinke, — U.S. —, 138 S. Ct. 897, 200 L.Ed.2d 92 (2018). Respondents correctly acknowledged as much at oral argument, agreeing that it is 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...