Amicus Curiae Brief — Mountain Valley Pipeline, LLC Applicant v. The Wilderness Society, et al.

No. 23A35

In the Supreme Court of the United States

———

MOUNTAIN VALLEY PIPELINE, LLC,

Applicant,

v.

THE WILDERNESS SOCIETY, ET AL.,

Respondents.

———

On Emergency Application to Vacate the Stays of the U.S. Court of Appeals for the

Fourth Circuit (Nos. 23-1592, 23-1594, & 23-1384)

BRIEF OF CURRENT MEMBERS OF UNITED STATES CONGRESS,

REPRESENTATIVE GUY RESCHENTHALER, SENATOR SHELLEY MOORE

CAPITO AND REPRESENTATIVES JEFF DUNCAN, BILL JOHNSON, JOHN

JOYCE, MIKE KELLY, DAN MEUSER, CAROL MILLER, AND ALEX MOONEY,

AS AMICI CURIAE IN SUPPORT OF APPLICANT

Sean W. Moran

Gretchen L. Jankowski

Matthew C. Pilsner

BUCHANAN INGERSOLL & ROONEY PC

501 Grant St., Ste 200

Pittsburgh, PA 15219

Natalie N. Peled

BUCHANAN INGERSOLL & ROONEY LLP

600 W. Broadway, Ste 1100

San Diego, CA 92101

Chance Lyman

Counsel of Record

BUCHANAN INGERSOLL & ROONEY PC

401 E. Jackson St., Ste 2400

Tampa, FL 33602

(813) 222-1152

chance.lyman@bipc.com

Amanda L. Wetzel

BUCHANAN INGERSOLL & ROONEY PC

50 S. 16th St., Ste 3200

Philadelphia, PA 19102

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................... ii

INTEREST OF AMICI CURIAE ................................................................................... 1

SUMMARY OF ARGUMENT ....................................................................................... 2

ARGUMENT

I.

Congress acted clearly, decisively, and legitimately in

providing for exclusive jurisdiction of Respondents’ claims

in the D.C. Circuit .................................................................................... 3

II.

Section 324(e)(2) directs legal challenges to the Act’s validity

to a Circuit with a national reputation and the experience

to handle those claims efficiently and thoroughly .................................. 8

CONCLUSION............................................................................................................. 10

TABLE OF AUTHORITIES

Page(s)

Cases:

Appalachian Voices v. United States Dep’t of Interior,

25 F.4th 259 (4th Cir. 2022) ...................................................................................... 4

Kingdomware Techs., Inc. v. United States,

579 U.S. 162 (2016) .................................................................................................... 4

Maine Cmty. Health Options v. United States,

140 S. Ct. 1308 (2020) ................................................................................................ 4

Sierra Club v. State Water Control Board,

Case No. 21-2425 (4th Cir. filed Dec. 22, 2021), ECF No. 82 ................................... 4

Sierra Club v. U.S. Army Corps of Eng’rs,

981 F.3d 251 (4th Cir. 2020) ...................................................................................... 4

Sierra Club v. West Virginia DEP,

Case No. 22-1008 (4th Cir. filed Jan. 3, 2022), ECF No. 66 ..................................... 4

Wild Virginia v. United States Forest Serv.,

24 F.4th 915 (4th Cir. 2022) ...................................................................................... 4

Statutes and Other Authorities:

U.S. Const., art. I ........................................................................................................... 2

U.S. Const., art. III ........................................................................................................ 2

10 U.S.C. § 950g(a) ........................................................................................................ 8

28 U.S.C. § 44(c) ............................................................................................................. 9

Pub. L. No. 118-5, § 324, 137 Stat. 10 (2023) ............................................................... 2

Pub. L. No. 118-5, § 324(e)(2), 137 Stat. 10 (2023) ....................................... 2, 3, 5, 6, 8

Sup. Ct. R. 37.6 .............................................................................................................. 1

169 Cong. Rec. S1877 (June 1, 2023) (statement of Sen. Capito) ................................ 7

169 Cong. Rec. S1879-80 (June 1, 2023) (statement of Sen. Kaine) ............................ 6

ii

169 Cong. Rec. S1881 (June 1, 2023) (statement of Sen. Manchin) ............................ 6

169 Cong. Rec. S1890 (June 1, 2023) (statement of Sen. Kaine) ................................. 6

Aaron L. Nielson, D.C. Circuit Review – Reviewed: The Second Most

Important Court? YALE J. ON REG.: NOTICE & COMMENT (Sept. 4,

2015), available at https://www.yalejreg.com/nc/d-c-circuit-review-reviewedthe-second-most-important-court-by-aaron-nielson/, last accessed

July 18, 2023 .............................................................................................................. 8

Barack Obama, Nomination of Justice Janice Rogers Brown Remarks

(June 8, 2005), available at http://obamaspeeches.com/021-Nomination-ofJustice-Janice-Rogers-BrownObama-Speech.htm, last accessed

July 15, 2023 ............................................................................................................ 10

John G. Roberts, Jr., Lecture, What Makes the D.C. Circuit Different?

A Historical View, 92 VA. L. REV. 375 (2006) ...................................................... 8, 9

iii

INTEREST OF AMICI CURIAE1

Amici are the following nine Members of the United States Congress: Rep. Guy

Reschenthaler (R-PA), Sen. Shelley Moore Capito (R-WV), Rep. Jeff Duncan (R-SC),

Rep. Bill Johnson (R-OH), Rep. John Joyce (R-PA), Rep. Mike Kelly (R-PA), Rep. Dan

Meuser (R-PA), Rep. Carol Miller (R-WV) and Rep. Alex Mooney (R-WV).

Amici have a strong interest in ensuring that the will of the people,

championed through elected representatives, is given effect by the courts and carried

out to the clear letter of the law. They are committed to defending the Constitution,

upholding the rule of law, and improving the lives of Americans throughout the

country.

Amici generally were proponents of, and voted for, the legislation at issue in

the Emergency Application, and the Mountain Valley Pipeline. Notably, some Amici

voted against the legislation as a whole but nonetheless supported the specific

provisions regarding the Mountain Valley Pipeline.

Amici either represent

jurisdictions through which the Pipeline runs or jurisdictions impacted by the

benefits of the Pipeline. Completion of the Pipeline will bring a boon to economies

throughout the region and reduced energy costs in neighboring states. As proponents

of both the Act and the rule of law in general, their interests are that legislation

1 Pursuant to this Court’s Rule 37.6, counsel for amici curiae certifies that this brief

was not authored in whole or in part by counsel for any party and that no person or

entity other than amici curiae or their counsel has made a monetary contribution

intended to fund the preparation or submission of this brief.

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properly passed by Congress be enforced, particularly as it pertains to this urgently

needed and critical energy project, which Congress expressly found and declared to

be “required in the national interest.”

App’x 66.

Restarting and completing

construction of the Mountain Valley Pipeline is imperative and will usher in a new

era of energy independence for the region.

SUMMARY OF ARGUMENT

The merits of any constitutional challenge to the Act are not now before this

Court because they were not properly before the Fourth Circuit below. The Fourth

Circuit’s stay orders—entered without explanation by a recurring panel of the same

three judges of that court routinely assigning themselves to “pipeline cases”—are an

ultra vires incursion on the will of the people.

Unquestionably, Article I of the Constitution vests Congress with the power to

prescribe the jurisdiction of the courts without intruding upon Article III. Congress

exercised that power in enacting Section 324 of the Fiscal Responsibility Act of 2023,

Pub. L. No. 118-5, § 324, 137 Stat. 10, 47-48 (2023) (the “Act”). The Act, passed with

bipartisan support, increases the reliability and availability of affordable natural gas

and assists the United States in gaining energy independence.

Of the Act’s several components, this Brief focuses on section 324(e)(2), which

vests “original and exclusive jurisdiction” in the U.S. Court of Appeals for the District

of Columbia Circuit over claims challenging the validity of the Act, such as those

covered by the Fourth Circuit stays. Congress did not craft this provision aimlessly.

2

All members voting on the bill understood exactly what was on the table. Neither the

meaning of the plain language, nor the Act’s intent, is disputable.

Instead, the crux of Respondents’ argument appears to be that Congress did

not go far enough. Specifically, Congress left a semantic sliver of jurisdiction in the

Fourth Circuit that aligns with Respondents’ novel interpretation of the Act’s clear

language.

This simply cannot be squared with the Act.

The Act provides

Respondents with their day in court. But today is not that day, and the Fourth

Circuit is not that court. Congress did not preclude judicial review for claims that

challenge the Act’s validity. Rather, Congress directed that judicial review of those

questions should occur in a single forum: the D.C. Circuit.

If the stays remain in place, Congress’s authority will be usurped and the harm

to the people will be irreparable. Respondents must pursue their claims of invalidity,

if at all, in the D.C. Circuit pursuant to the Act. This Court should grant the

Emergency Application and vacate the Fourth Circuit stays for lack of jurisdiction.

ARGUMENT

I.

Congress acted clearly, decisively, and legitimately in providing for

exclusive jurisdiction of Respondents’ claims in the D.C. Circuit.

Section 324(e)(2) could not be clearer. It states, in plain language, that “[t]he

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

3

an action is beyond the scope of authority conferred by this section.” App’x 67

(emphases added).

The provision is not complicated (and it would not be controversial but for the

specter of the three-judge panel of the Fourth Circuit).2 Congress used unambiguous,

mandatory language (i.e., “shall”), which leaves no room for the Fourth Circuit stays

challenged in the Emergency Application. See Maine Cmty. Health Options v. United

States, 140 S.Ct. 1308, 1320 (2020) (“Unlike the word ‘may,’ which implies discretion,

the word ‘shall’ usually connotes a requirement.” (quoting Kingdomware Techs., Inc.

v. United States, 579 U.S. 162, 171 (2016))). If Respondents claim the Act is invalid

in any way, then Congress gave Respondents a remedy: bring that claim in the D.C.

Circuit.

Undeterred by the congressional command, Respondents abandoned their

claims pending in the D.C. Circuit and opted to return (or remain) in the Fourth

Circuit. On Respondents’ invitation, the same three-judge panel stayed completion

The same three-judge panel of the Fourth Circuit has routinely heard cases

involving the Pipeline. See, e.g., Sierra Club v. U.S. Army Corps of Eng’rs, 981 F.3d

251 (4th Cir. 2020); Wild Virginia v. United States Forest Serv., 24 F.4th 915 (4th

Cir. 2022); Appalachian Voices v. United States Dep’t of Interior, 25 F.4th 259 (4th

Cir. 2022). Like the stay orders at issue here, the Fourth Circuit also denied

Applicant’s motions challenging these panel assignments—which materially depart

from the Fourth Circuit’s own internal operating procedures—without explanation.

See, e.g., Sierra Club v. West Virginia DEP, Case No. 22-1008 (4th Cir. filed Jan. 3,

2022), ECF No. 66 (single-sentence Order entered by the Clerk of Court denying

motion for random panel assignment); Sierra Club v. State Water Control Board,

Case No. 21-2425 (4th Cir. filed Dec. 22, 2021), ECF No. 82 (same).

2

4

of the Pipeline yet again, offering no explanation in its single-sentence orders for the

exercise of its assumed legitimate authority.

Respondents now contend that they can avoid the congressional mandate

regarding jurisdiction by arguing that the Act does not apply to pending actions, or

that their claims do not directly challenge the Act but instead allege violations of

other statutes and regulations associated with the completion of the Pipeline.

But the Act—again, quite clearly—approves all authorizations necessary for

the construction and initial operation of the Pipeline. App’x 66. On top of that, the

Act precludes any court from reviewing “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” any approval necessary for the construction and initial operation of

the Pipeline. App’x 66. This can only leave Respondents with their claim that the

Act, which is now the principal law blocking their desired outcome, is

unconstitutional. But the Fourth Circuit is powerless to hear that claim: the D.C.

Circuit has “original and exclusive” jurisdiction over any claim challenging the

validity of the Act. App’x 67 (emphasis added).

Congress knew how definitive and exclusive a grant of jurisdiction section

324(e)(2) vested in the D.C. Circuit. Addressing section 324(e)(2), Senator Tim Kaine,

who opposed the Act, stated that the Act

5

is a rebuke of the Fourth Circuit of the U.S. Court of Appeals, which . . .

has been the court that has heard cases about the Mountain Valley

Pipeline, challenges to agency decisions in the previous administration

where the court said: Hey, look, the agency didn’t do what they were

supposed to do. Go back and do it right this time.

...

I lost. I am unhappy. Why don’t I get Congress to rewrite the rules of

Federal jurisdiction and take this case away from the court that has

made me unhappy and put it in another court? Yet that is what this bill

will do. It will end further administrative review. It will end judicial

review of any permit. And it will say only this: If someone wants to

challenge what Congress is doing here, saying it is unlawful or

unconstitutional or an overreach, they have to file that challenge in the

DC Circuit Court of Appeals. They cannot file it in the Fourth Circuit

where this project is being considered.

169 Cong. Rec. S1879-80 (June 1, 2023) (statement of Sen. Kaine); see also 169 Cong.

Rec. S1890 (June 1, 2023) (statement of Sen. Kaine: “Finally, this bill would strip

jurisdiction of a case away from the Fourth Circuit in the middle of the case.”).

Again, the issue to be decided here is not whether the Act’s jurisdictional

mandate is valid—but rather whether the Fourth Circuit has jurisdiction to reach

that issue. Clearly, it does not. Since Congress has vested only the D.C. Circuit with

jurisdiction, any dispute over validity must occur in the D.C. Circuit. As Senator

Joseph Manchin acknowledged in response to Senator Kaine’s comments, the Act

“has some review processes,” (i.e., section 324(e)(2)) and the impetus for the Act was

simply that “things that have been done multiple times proceed on.” 169 Cong. Rec.

S1881 (June 1, 2023) (statement of Sen. Manchin).

Senator Shelley Moore Capito also addressed the importance of the Act’s

provisions addressing jurisdiction, stating that

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the Mountain Valley Pipeline is a prime example of an important project

that has faced senseless delays, mostly as a result of litigation filed by

anti-natural gas activists at the U.S. Court of Appeals for the Fourth

Circuit.

...

The Mountain Valley Pipeline is 95 percent complete and would

be finished today if it weren’t for the rulings by the Fourth Circuit that

have stayed or vacated multiple approvals granted by Federal and State

environmental regulators. The Fourth Circuit has acted nine times with

respect to the Mountain Valley Pipeline. On eight of those nine

occasions, the court has either stayed or vacated an approval from a

Federal or a State agency.

Only once did the court uphold an approval for this project, and

that was when the court upheld water quality certifications from the

State of Virginia, under section 401 of the Clean Water Act. But, within

days of that opinion, the same Fourth Circuit panel vacated similar 401

water quality certifications from the State of West Virginia.

...

We have become all too familiar with the Fourth Circuit’s

blocking of key projects. The same panel that has rejected nearly all of

the State and Federal approvals for the Mountain Valley Pipeline

brought before it took similar actions to vacate State and Federal

approvals for the now canceled Atlantic Coast Pipeline.

...

Activists are using the same playbook at the Fourth Circuit to try

to stop the Mountain Valley Pipeline. . . .

Given the project’s benefits and given approvals from State and

Federal regulators across multiple administrations from both parties, I

do not believe that a handful of judges should have the final say.

...

This legislation makes it crystal clear that Congress expects the

Mountain Valley Pipeline to be completed, consistent with the

previously approved environmental documents.

169 Cong. Rec. S1877 (June 1, 2023) (statement of Sen. Capito).

In short, a few Fourth Circuit judges are not supreme rulers, and the lawful

enactments of the legislative branch must be followed.

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II.

Section 324(e)(2) directs legal challenges to the Act’s validity to a Circuit

with a national reputation and the experience to handle those claims

efficiently and thoroughly.

The intent of section 324(e)(2) is not only clear, but it also makes good sense.

Vesting exclusive jurisdiction in the D.C. Circuit achieves the efficiency benefits of

channeling all challenges to the Act’s validity to a uniform forum—one with a unique

history and reputation as a national court.

Indeed, the D.C. Circuit is largely

considered to be the second-most important court in the country. See Aaron L.

Nielson, D.C. Circuit Review – Reviewed: The Second Most Important Court? YALE

J.

ON

REG.:

NOTICE

&

COMMENT

(Sept.

4,

2015),

available

at

https://www.yalejreg.com/nc/d-c-circuit-review-reviewed-the-second-most-importantcourt-by-aaron-nielson/, last accessed July 18, 2023.

The national character of the D.C. Circuit—a feature of the court since its

inception in 1801—has led Congress to think of it as a “natural repository of

jurisdiction” for all sorts of legal challenges. See John G. Roberts, Jr., Lecture, What

Makes the D.C. Circuit Different? A Historical View, 92 VA. L. REV. 375, 389 (2006).

When Congress has wanted to direct litigation to a particular court of appeals to

ensure uniformity, it has vested exclusive jurisdiction in the D.C. Circuit in a variety

of legal contexts.

See, e.g., 10 U.S.C. § 950g(a) (relating to review of military

commission judgments); see also Roberts, supra, at 385, 389 (noting that Congress

first gave the circuit exclusive authority over specific subject matter in 1870, which

would serve as a “prototype” for similar decisions that would follow). For the reasons

8

explained in the Emergency Application, Congress had the authority to do the same

here.

The D.C. Circuit’s composition reflects its status as a national court. Unlike

other jurisdictions, judges that serve on the D.C. Circuit may be nominated from any

part of the United States: “[e]xcept in the District of Columbia, each circuit judge

shall be a resident of the circuit for which appointed at the time of his appointment

and thereafter while in active service.” 28 U.S.C. § 44(c); see also Roberts, supra, at

376 (observing that the “judges on the D.C. Circuit are chosen from beyond the

boundaries of the circuit itself,” which “is not true of the other circuits”). The fact

that the circuit’s appointees hail from around the country is “an important feature of

the D.C. Circuit’s history through the modern age,” and has developed its character

as a national court. See Roberts, supra, at 384-85.

In a 2005 speech to Congress, then-Senator Barack Obama repeated the

accepted wisdom that the D.C. Circuit Court is “a special court [that] has jurisdiction

that other appeals courts do not have” and it tackles a disproportionate share of

complicated cases affecting a wide range of important national public policy issues:

[Under the D.C. Circuit’s] jurisdiction fall laws relating to all sorts of

Federal agencies and regulations. . . . The judges on this court are

entrusted with the power to make decisions affecting the health of the

environment, the amount of money we allow in politics, the right of

workers to bargain for fair wages and find freedom from discrimination,

and the Social Security that our seniors will receive.

9

Barack Obama, Nomination of Justice Janice Rogers Brown Remarks (June 8, 2005),

available

at

http://obamaspeeches.com/021-Nomination-of-Justice-Janice-Rogers-

BrownObama-Speech.htm, last accessed July 15, 2023.

It is undisputed that the U.S. Court of Appeals for the D.C. Circuit is unique

from courts of appeal in other circuits. Due to its distinctive character as a national

court—which has prompted Congress’s frequent grant of exclusive or concurrent

jurisdiction in the D.C. Circuit—and expertise in constitutional law issues that arise

in connection with a variety of matters, it is particularly well suited to handle claims

“alleging the invalidity of [the Act] or that an action is beyond the scope of authority

conferred by [the Act].” App’x 67.

Congress acted within its authority. It also acted sensibly and with bipartisan

support. The Fourth Circuit, however, simply disregarded the law. Worse, the court

did so without opinion or any articulated rationale. If this is to be a republic of laws

and not of men, a recurring three-judge panel of the Fourth Circuit cannot be

permitted to override the clear will of the people. Intervention is imperative.

CONCLUSION

Simply put, Respondents must bring their claims of invalidity, if at all, in the

D.C. Circuit. This Court should grant the Emergency Application and vacate the

Fourth Circuit stays for lack of jurisdiction.

10

Dated: July 19, 2023

Respectfully submitted,

Sean W. Moran

Gretchen L. Jankowski

Matthew C. Pilsner

BUCHANAN INGERSOLL & ROONEY PC

501 Grant St., Ste 200

Pittsburgh, PA 15219

Chance Lyman

Natalie N. Peled

BUCHANAN INGERSOLL & ROONEY LLP

600 W. Broadway, Ste 1100

San Diego, CA 92101

Amanda L. Wetzel

BUCHANAN INGERSOLL & ROONEY PC

50 S. 16th St., Ste 3200

Philadelphia, PA 19102

Counsel of Record

BUCHANAN INGERSOLL & ROONEY PC

401 E. Jackson St., Ste 2400

Tampa, FL 33602

(813) 222-1152

chance.lyman@bipc.com

Counsel for Amici Curiae

11