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

Supreme Court briefJul 20, 2023

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No. 23A35

In the

Supreme Court of the United States

MOUNTAIN VALLEY PIPELINE, LLC, APPLICANT,

THE WILDERNESS SOCIETY, ET AL.

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 FOR THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS

CURIAE IN SUPPORT OF EMERGENCY APPLICATION TO CHIEF

JUSTICE JOHN G. ROBERTS, JR., TO VACATE THE STAYS OF AGENCY

AUTHORIZATIONS PENDING ADJUDICATION OF THE PETITIONS FOR

REVIEW

MATTHEW B. BERRY

General Counsel

Counsel of Record

TODD B. TATELMAN

Deputy General Counsel

BRADLEY CRAIGMYLE

Associate General Counsel

RACHEL A. JANKOWSKI

Assistant General Counsel

Office of General Counsel

U.S. House of Representatives

5140 O’Neill House Office Building

Washington, D.C. 20515

(202) 225-9700

Matthew.Berry@mail.house.gov

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE............................................................................. 1

SUMMARY OF ARGUMENT...................................................................................... 3

ARGUMENT.................................................................................................................. 6

The FRA Permissibly Created New Law Related to the Pipeline....... 7

II.

The FRA Does Not Intrude Upon the Judicial Power......................... 14

III.

Because the FRA Changed the Law Related to the Pipeline,

the Respondents Have No Likelihood of Success on the Merits.......20

IV.

The Stays Granted by the Fourth Circuit Directly Obstruct

an Important Policy Decision Made by Congress and Are

an Affront to the Separation of Powers.................................................. 22

CONCLUSION.............................................................................................................24

TABLE OF AUTHORITIES

Cases

Page(s)

Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,

141 S. Ct. 2485 (2021) ............................................................................................ 24

All. for the Wild Rockies v. Salazar,

672 F.3d 1170 (9th Cir. 2012) .......................................................................... 11, 21

Apache Survival Coal. v. United States,

21 F.3d 895 (9th Cir. 1994) .................................................................................... 11

Appalachian Voices v. Dep’t of Interior,

No. 23-1384 (4th Cir. July 11, 2023) ........................................................................ 2

Bank Markazi v. Peterson,

578 U.S. 212 (2016) ......................................... 4, 5, 12, 13, 14, 15, 16, 17, 18, 19, 20

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ...................................................................................... 23, 24

Biodiversity Assocs. v. Cables,

357 F.3d 1152 (10th Cir. 2004) .............................................................................. 10

Citizens for Const. Integrity v. United States,

57 F.4th 750 (10th Cir. 2023), petition for cert. filed,

No. 22-1186 (U.S. June 6, 2023) ........................................................................... 11

City of Arlington v. FCC,

569 U.S. 290 (2013) ................................................................................................ 15

Consejo de Desarrollo Economico de Mexicali, A.C. v. United States,

482 F.3d 1157 (9th Cir. 2007) .............................................................. 12, 13, 21, 22

Egelhoff v. Egelhoff ex. Rel. Breiner,

532 U.S. 141 (2001) ................................................................................................ 19

Fed. Energy Regul. Comm’n v. Mississippi,

456 U.S. 742 (1982) .................................................................................................. 9

First Gibraltar Bank, FSB v. Morales,

42 F.3d 895 (5th Cir. 1995) .................................................................................... 10

Friends of Animals v. Jewell,

824 F.3d 1033 (D.C. Cir. 2016)............................................................................... 11

Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc.,

452 U.S. 264 (1981) ............................................................................................ 9, 10

James v. Hodel,

696 F. Supp. 699 (D.D.C. 1988).............................................................................. 22

Kleppe v. New Mexico,

426 U.S. 529 (1976) ................................................................................................ 10

La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355 (1986) .................................................................................................. 8

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .................................................................................. 15

Mattingly v. District of Columbia,

97 U.S. 687 (1878) ............................................................................................ 18, 19

Miller v. French,

530 U.S. 327 (2000) ................................................................................................ 14

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ................................................................................................ 23

Nat’l Coalition to Save Our Mall v. Norton,

269 F.3d 1092 (D.C. Cir. 2001)............................................................................... 15

Patchak v. Zinke,

138 S. Ct. 897 (2018) .......................................................................................... 6, 14

Pennsylvania v. Wheeling & Belmont Bridge Co.,

59 U.S. (18 How.) 421 (1855) ................................................................................. 14

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) .......................................................................................... 12, 18

iii

Pope v. United States,

323 U.S. 1 (1944) .................................................................................................... 20

Robertson v. Seattle Audobon Soc’y,

503 U.S. 429 (1992) .......................................................................................... 15, 16

Stop H-3 Ass’n v. Dole,

870 F.2d 1419 (9th Cir. 1989) .............................................................. 10, 12, 13, 21

Swayne & Hoyt v. United States,

300 U.S. 297 (1937) .................................................................................... 13, 18, 19

United States v. Heinszen,

206 U.S. 370 (1907) ................................................................................................ 13

United States v. Klein,

80 U.S. (13 Wall.) 128 (1871) ....................................................................... 5, 16, 17

United States v. Padelford,

76 U.S. (9 Wall) 531 (1869) ................................................................................... 17

United States v. Schooner Peggy,

5 U.S. (1 Cranch) 103 (1801) .................................................................................. 14

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ............................................................................................ 24

Wilderness Soc’y v. U.S. Forest Serv.,

No. 23-1592 (4th Cir. July 10, 2023) ........................................................................ 2

Wilderness Soc’y v. U.S. Forest Serv.,

No. 23-1594 (4th Cir. July 10, 2023) ........................................................................ 2

Wilson v. Shaw,

204 U.S. 24 (1907) ............................................................................................ 13, 18

Constitution

U.S. Const. art. I, § 1 ..................................................................................................... 9

U.S. Const. art. I, § 8, cl. 3......................................................................................... 4, 9

U.S. Const. art. IV, § 3, cl. 2 ...................................................................................... 4, 9

Statutes

15 U.S.C. § 717f ............................................................................................................. 8

15 U.S.C. § 717r(d)(1) .................................................................................................... 9

Fiscal Responsibility Act (FRA), Pub. L. No. 118-5, 137 Stat. 10 (2023) .................... 1

FRA § 324 .............................................................................................................. 7

FRA § 324(b) .................................................................................... 1, 6, 21, 22, 23

FRA § 324(c) ...................................................................... 2, 3, 5, 7, 13, 18, 19, 20

FRA § 324(d) ................................................................................................ 2, 7, 21

FRA § 324(e) ...................................................................................... 2, 6, 7, 14, 22

FRA § 324(f) ................................................................................... 2, 3, 6, 8, 19, 21

Legislative Sources

Rule II.8(b), Rules of the U.S. House of Representatives,

118th Cong. (2023) ................................................................................................... 1

Other Sources

Black’s Law Dictionary (11th ed. 2019) ........................................................................ 8

Howard M. Wasserman, The Irrepressible Myth of Klein,

79 U. Cin. L. Rev. 53 (2010) ................................................................................... 18

INTEREST OF AMICUS CURIAE1

The U.S. House of Representatives (House) 2 has a substantial institutional interest in preserving the full scope of its broad legislative authority under the Constitution. Just last month, as part of the Fiscal Responsibility Act (FRA), Pub. L. No.

118-5, 137 Stat. 10 (2023), Congress determined that “the timely completion of construction and operation of the Mountain Valley Pipeline [(Pipeline)] is required in the

national interest” because, among other things, it “will increase the reliability of natural gas supplies and the availability of natural gas at reasonable prices” as well as

“reduce carbon emissions.” FRA § 324(b) (emphasis added).

Accordingly, Congress made a number of changes to federal law to expedite the

Pipeline’s completion. In the FRA, it (1) “ratifie[d] and approve[d]” a wide range of

prior federal agency actions “necessary for the construction and initial operation at

full capacity of the … Pipeline,” (2) directed appropriate federal officials and agencies

to “maintain” those agency actions, (3) required the Secretary of the Army to issue

within twenty-one days “all permits or verifications necessary to complete the con-

1 Consistent with Supreme Court Rule 37.6, the House states that no counsel for a party au-

thored this brief in whole or in part and that no person or entity other than the House or its counsel

made a monetary contribution intended to fund the preparation or submission of this brief.

2 The Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives has au-

thorized the filing of an amicus brief in this matter. The BLAG comprises the Honorable Kevin McCarthy, Speaker of the House, the Honorable Steve Scalise, Majority Leader, the Honorable Tom Emmer,

Majority Whip, the Honorable Hakeem Jeffries, Minority Leader, and the Honorable Katherine Clark,

Minority Whip, and it “speaks for, and articulates the institutional position of, the House in all litigation matters.” Rule II.8(b), Rules of the U.S. House of Representatives, 118th Cong. (2023)

(https://perma.cc/DK3P-55K6). The Speaker of the House, the Majority Leader, and the Majority Whip

voted to support the filing of this brief; the Minority Leader and Minority Whip did not.

struction” and “allow for the operation and maintenance” of the Pipeline, and (4) superseded “any other provision of law” inconsistent with “any authorization, permit,

verification, biological opinion, incidental take statement, or other approval for the

… Pipeline.” Id. § 324(c), (d), (f). Furthermore, Congress removed from any court the

jurisdiction to review agency actions “necessary for the construction and initial operation at full capacity of the … Pipeline,” and directed that the D.C. Circuit “shall have

original and exclusive jurisdiction over any claim” challenging the validity of the FRA

provisions involving the Pipeline. Id. § 324(e)(1)-(2). In short, Congress exercised its

Article I and Article IV powers to make the following policy decision: federal law will

facilitate the prompt completion of the Pipeline and commencement of its operation.

Notwithstanding this clear action by Congress on a matter of national importance, the Fourth Circuit has issued, without any explanation, three stays pending review of agency actions necessary for the Pipeline’s construction, 3 thus delaying

its completion for an indefinite period of time. The Fourth Circuit did not address

how, given the FRA, it had any jurisdiction to enter the stays or maintain jurisdiction

over the pending petitions for review challenging the agency actions approving the

Pipeline. Nor did the Fourth Circuit explain how the underlying claims challenging

3 Order, Wilderness Soc’y v. U.S. Forest Serv., No. 23-1592 (4th Cir. July 10, 2023); Order,

Wilderness Soc’y v. U.S. Forest Serv., No. 23-1594 (4th Cir. July 10, 2023); Order, Appalachian Voices

v. Dep’t of Interior, No. 23-1384 (4th Cir. July 11, 2023).

the agency actions involving the Pipeline have any chance of success on the merits

given how the FRA changed relevant federal law.

The House does not lightly weigh in as an amicus in front of this Court regarding an emergency application to vacate stays of agency actions. But the stakes are

high. The House respectfully submits that the orders below are an affront to the

separation of powers that require this Court’s intervention. Because of the FRA, the

petitions for review filed below lack any merit, and there is no likelihood that they

will be granted. And the injunctive relief issued by the Fourth Circuit—with no

stated reasoning—is obstructing Congress’s exercise of its constitutional power to

pursue an objective that the American people’s elected representatives have just

found to be required in the national interest: the timely completion of the Pipeline.

The House therefore urges the Court to immediately vacate the stays issued

by the Fourth Circuit.

SUMMARY OF ARGUMENT

Congress lawfully exercised its broad constitutional authority when it

changed the law that applies to the Pipeline. Congress modified the law by ratifying

and approving the agency actions necessary for the Pipeline’s construction and operation. See FRA § 324(c)(1). Congress could’ve stopped there—that change alone gave

the Pipeline-related approvals the force of law. But Congress went even further: it

expressly stated that its approval applied “[n]otwithstanding any other provision of

law,” and that these FRA provisions “supersede[] any other provision of law” that is

inconsistent with agency actions approving the Pipeline. See FRA § 324(c), (f).

Congress used its constitutional powers to pass the statutes the Respondents

rely upon to challenge the Pipeline. See, e.g., U.S. Const. art. I, § 8, cl. 3; id. art. IV,

§ 3, cl. 2. And just as Congress holds the power to impose those statutory requirements, it necessarily possesses the complementary power to modify or eliminate

them. That authority is not subject to time restraints—Congress may change a law

whenever it so chooses, including, as it did here, after an agency action based on that

law has been taken and while it is being challenged in court. The Respondents’ contrary claim, that a pending lawsuit bars Congress from changing a law that relates

to that litigation, reflects a serious misunderstanding of Article I and our constitutional structure more generally.

Beyond the ability to change the law when it sees fit, Congress has the same

ability to change the law how it sees fit. For example, it may repeal all or part of a

statute. Or it may opt for a more precise change, as it did here, and exempt a specific

project from generally applicable laws.

II. The FRA does not invade the judiciary’s Article III power because Congress

did not direct courts on how to apply existing law to specific facts; it made new law.

This Court has repeatedly held that Congress may, as it did here, “amend the law

and make the change applicable to pending cases.” See, e.g., Bank Markazi v. Peterson, 578 U.S. 212, 215 (2016). In fact, Congress may even amend the law in a way

that is “outcome determinative” in a case. Id.

So long as Congress changes the law, it acts well within its constitutional authority. It did just that in the FRA. By giving the Pipeline-related approvals the

force of law, and by superseding all inconsistent laws, Congress made new substantive law with the FRA. Any statute that could have provided the basis for a legal

challenge to the relevant agency actions now does not.

Far from ordering the courts to decide a specific case in a specific way, the FRA

leaves a quintessential role for the judiciary. The FRA provisions pertain only to

those actions “necessary for the construction and initial operation at full capacity of

the … Pipeline.” See, e.g., FRA § 324(c)(1). Courts must apply that standard to the

facts before them to see if the FRA applies, which is exactly what Article III contemplates.

Because the FRA creates new law and does not direct courts on how to apply

existing law to specific circumstances, the Respondents’ reliance below on United

States v. Klein, 80 U.S. (13 Wall.) 128 (1871), is inapposite. This Court has made

clear that when Congress creates “a new legal standard,” as it did here, “Klein does

not inhibit Congress from ‘amend[ing] applicable law’” in pending cases. See Bank

Markazi, 578 U.S. at 226, 230 (alteration in original) (citation omitted).

III. Congress did not merely change the law relating to the Pipeline; it did so

in a way that dooms the Respondents’ claims. They argue that certain agency actions

regarding the Pipeline violate various federal statutes. But the FRA “ratifies and

approves” those agency actions “[n]otwithstanding any other provision of law.” §

324(c)(1). Even if the Respondents’ arguments were correct and the agency actions

previously violated federal law, they no longer do. Congress ratified and approved

the actions, and those approvals “supersede[]” any inconsistent law. Id. § 324(f). The

Respondents’ claims are now moot and lack any merit.

IV. This Court’s recent decisions have emphasized that it is Congress that

should make important policy decisions. Congress did so in the FRA. It found that

the “timely completion of construction and operation of the … Pipeline is required in

the national interest,” see FRA § 324(b), and took a number of steps to ensure that

would happen. But with the Pipeline’s construction on hold for an indefinite period

of time because of the Fourth Circuit’s unexplained stays, the Pipeline’s construction

and operation will not be timely completed. This means that Congress’s policy decision on a matter of national importance will not be realized, and its constitutional

authority will be undermined, unless this Court steps in and vacates the stays.

ARGUMENT

The House agrees with the Applicant that the Fourth Circuit lacks subject

matter jurisdiction over the Respondents’ petitions for review because they challenge

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

the … Pipeline.” See id. § 324(e)(1) (providing that courts lack jurisdiction over “any

lawsuit pending in a court as of the date of enactment of this section” when the statutory trigger is met); Emergency Appl. 13-14.4 The House likewise agrees that the

Fourth Circuit lacks subject matter jurisdiction over the Respondents’ claims that

4 Thus, the Court could decide that Congress reinstated sovereign immunity in the FRA, and

it could decide to vacate the stays on that ground as well. Cf. Patchak v. Zinke, 138 S. Ct. 897, 912

(2018) (Ginsburg, J., concurring) (“Congress’ authority to reinstate sovereign immunity, this Court has

recognized, extends to pending litigation.”).

dispute the FRA’s validity; such challenges can be brought only in the D.C. Circuit.

See FRA § 324(e)(2); Emergency Appl. 14-17.

While those are independent reasons why the Court should vacate the stays

issued by the Fourth Circuit, this brief focuses on a third reason: Congress permissibly changed the substantive law that relates to the Pipeline. The legal effect of those

changes is that the Respondents’ claims are now moot and completely without merit.

The FRA Permissibly Created New Law Related to the Pipeline

A. When Congress passed the FRA, it created new substantive law related to

the Pipeline. See generally FRA § 324 (section titled “Expediting Completion of the

Mountain Valley Pipeline”). Congress expressly put its stamp of approval on the

Pipeline project and made clear that any regulatory action necessary to its construction was henceforth consistent with federal law.

First, Congress “ratifie[d] and approve[d] all … approvals or orders issued pursuant to Federal law necessary for the construction and initial operation at full capacity of the … Pipeline.” Id. § 324(c)(1). Second, Congress “direct[ed]” the relevant

agencies “to continue to maintain” these agency actions and decisions. Id. § 324(c)(2).

Third, Congress mandated that the Secretary of the Army, within twenty-one days

of enactment, “issue all permits or verifications necessary” to complete the Pipeline’s

construction across U.S. waters and allow for its operation, the last remaining regulatory barrier to finishing the project. See id. § 324(d).

Critically, these changes—the ratification, approval, and direction to the agencies—are “[n]otwithstanding any other provision of law,” id. § 324(c), (d), meaning

they apply despite any other federal statute, see Notwithstanding, Black’s Law Dictionary (11th ed. 2019). Congress’s intent was unambiguous: it expressly provided

that the changes “supersede[] any other provision of law … inconsistent with the issuance of [any] … approval for the … Pipeline.” See id. § 324(f) (emphasis added);

Supersede, Black’s Law Dictionary (11th ed. 2019) (“To annul, make void, or repeal

by taking the place of ….”). In short, to the extent that any such approval had been

inconsistent with any federal statute, that is no longer the case after the FRA.

B. Congress properly exercised its broad legislative authority when it created

new substantive law related to the Pipeline. Throughout the lengthy litigation involving the Pipeline, the Respondents have never suggested that Congress lacked the

authority to impose the statutory requirements forming the basis of their claims. Indeed, their court challenges to the Pipeline implicitly depend upon Congressional authority to regulate through laws such as the Endangered Species Act (ESA). But

those regulatory requirements that Congress has the power to adopt, it also has the

power to remove or modify.

1. It’s worth putting this litigation in context. These are administrative law

cases. The Respondents are challenging agency decisions issued only because Congress delegated to those agencies the authority to take these actions. See, e.g., La.

Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no

power to act … unless and until Congress confers power upon it.”); 15 U.S.C. § 717f

(empowering the agency to take actions and grant approvals related to natural gas

transportation). To file their petitions for review, the Respondents relied on a statute

where Congress gave the courts of appeals jurisdiction to hear challenges to agency

decisions. See 15 U.S.C. § 717r(d)(1). And the Respondents’ claims for relief rely on

statutes passed by Congress: they allege that agency actions violate the Mineral Leasing Act, the National Forest Management Act, the National Environmental Policy

Act, the ESA, and the Administrative Procedure Act. Congress, of course, had no

obligation to pass any of these laws, and it is free to repeal or change them at any

time.

2. The Constitution provides that “[a]ll legislative [p]owers herein granted

shall be vested in … Congress,” including the power to regulate interstate commerce.

U.S. Const. art. I, § 1; id. § 8, cl. 3. Moreover, in the Property Clause, the Constitution

specifically grants Congress the power to “make all needful Rules and Regulations

respecting the Territory or other Property belonging to the United States,” U.S.

Const. art. IV, § 3, cl. 2, authority particularly relevant to the Respondents’ challenge

to the approval of Pipeline construction in the Jefferson National Forest.

With these powers, Congress may make national energy and environmental

policy. See, e.g., Fed. Energy Regul. Comm’n v. Mississippi, 456 U.S. 742, 757 (1982)

(“We agree with appellants that it is difficult to conceive of a more basic element of

interstate commerce than electric energy, a product used in virtually every home and

every commercial or manufacturing facility. … [A]ctivities of these utilities … bring

them within the reach of Congress’ power over interstate commerce.”); Hodel v. Va.

Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 282 (1981) (“[T]he power

conferred by the Commerce Clause [is] broad enough to permit congressional regulation of activities causing air or water pollution, or other environmental hazards that

may have effects in more than one State.”); Kleppe v. New Mexico, 426 U.S. 529, 539

(1976) (“[W]e have repeatedly observed that ‘[t]he power over the public land thus

entrusted to Congress is without limitations.’” (second alteration in original) (citation

omitted)). And Congress exercised those powers to pass the laws upon which the

Respondents’ challenges to the Pipeline rest.

3. However, just as Congress holds the power to impose regulatory requirements and delegate regulatory authority to agencies, it possesses the complementary

power to modify or eliminate those requirements and rescind those delegations. Cf.

Stop H-3 Ass’n v. Dole, 870 F.2d 1419, 1437 (9th Cir. 1989) (“It is fully within Congress’ prerogative legislatively to alter the reach of the laws it passes, assuming no

constitutional principles are thereby violated.”); Biodiversity Assocs. v. Cables, 357

F.3d 1152, 1162-63 (10th Cir. 2004) (“To give specific orders by duly enacted legislation in an area where Congress has previously delegated managerial authority … is

merely to reclaim the formerly delegated authority. Such delegations, which are accomplished by statute, are always revocable in like manner ….”); First Gibraltar

Bank, FSB v. Morales, 42 F.3d 895, 901 (5th Cir. 1995) (“As part of its legislative

powers, Congress designates the scope of agency authority, and if Congress so

chooses, it can subsequently restrict or limit that delegation of power to the agency.”).

For example, Congress could generally exempt all pipeline approvals from

complying with all statutes and regulations that impose pipeline-related requirements if it wants to do so. Or it could generally prohibit any pipeline from being

constructed in a national forest. It could also take more targeted action to change the

law, as it did here, and decide that because the timely completion of a specific pipeline

is in the national interest, any agency actions necessary for the construction of that

pipeline are consistent with all federal laws, and any inconsistent law is superseded.

Just as Congress “legitimate[ly] exercise[s] … legislative power” when it overrides an

agency decision under the Congressional Review Act, Citizens for Const. Integrity v.

United States, 57 F.4th 750, 763 (10th Cir. 2023), petition for cert. filed, No. 22-1186

(U.S. June 6, 2023), it also permissibly exercises legislative authority when it passes

a law that approves an agency decision.

4. Moreover, Congress can change the law whenever it sees fit; there’s no timing restriction. It can change the relevant law before a regulatory proceeding begins,

during the proceeding, or after the proceeding concludes. See, e.g., Apache Survival

Coal. v. United States, 21 F.3d 895, 899-900, 901-05 (9th Cir. 1994) (upholding a

change in the relevant law that Congress made during a project’s approval process);

All. for the Wild Rockies v. Salazar, 672 F.3d 1170, 1174 (9th Cir. 2012) (upholding a

change in the relevant law after a district court found that final agency action violated federal law); Friends of Animals v. Jewell, 824 F.3d 1033, 1038-39, 1042-45

(D.C. Cir. 2016) (similar).

Congress can also change the law, as it did here, after the regulatory process

has concluded, even while the agency action is being challenged in court. See Dole,

870 F.2d at 1432 (upholding a change in the relevant law that Congress made while

litigation challenging an approval process was ongoing); Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1168 (9th Cir. 2007) (same).

The Respondents’ contrary claim that Congress could not change the law related to

the Pipeline can be distilled to the following proposition: a judicial challenge to agency

action (taken only because Congress delegated the agency authority to take that action) freezes Congress’s constitutional authority to change the law upon which the

agency action was based. Such an argument is flatly inconsistent with the Constitution, which vests all legislative power in Congress.

5. The Respondents do not suggest that Congress lacks the general authority

to pass legislation related to pipelines or to change existing statutes. They instead

suggest that something nefarious is afoot because the FRA applies to a single pipeline

project. But Congress may legislate as broadly or narrowly as it sees fit, and—as this

Court has recognized—it may pass targeted legislation that applies only to a single

subject. See Bank Markazi, 578 U.S. at 234; Plaut v. Spendthrift Farm, Inc., 514 U.S.

211, 239 n.9 (1995) (“Even laws that impose a duty or liability upon a single individual or firm are not on that account invalid ….”). This is unsurprising because, so long

as a statute is otherwise constitutional, Congress may write the law as broadly or

narrowly as it deems appropriate. See, e.g., Bank Markazi, 578 U.S. at 233 (“The

Bank’s argument is further flawed, for it rests on the assumption that legislation

must be generally applicable, that ‘there is something wrong with particularized legislative action.’” (citation omitted)).

As part of its authority to define the scope of the legislation it passes, Congress

may exempt a specific project from generally applicable laws, as it did here. See, e.g.,

Consejo, 482 F.3d at 1168 (“Assuming it uses constitutional means, Congress may

exempt specific projects from the requirements of environmental laws.”); Dole, 870

F.2d at 1431 (“[I]t is simply not true that Congress may not create exemptions from

generally applicable statutes in order to authorize state-specific projects.”). This

makes perfect sense: Congress adopted the generally applicable statutes, and it can

change them—and exempt specific projects from their requirements—as it so desires.

6. Finally, since Congress could have retained for itself the power to approve

pipelines rather than delegate that authority to agencies, Congress has the authority

to ratify those agency approvals. See FRA § 324(c)(1). “It is well settled that Congress

may, by enactment not otherwise inappropriate, ‘ratify … acts which it might have

authorized’” itself. Swayne & Hoyt v. United States, 300 U.S. 297, 301-02 (1937) (alteration in original) (citation omitted). This Court has called Congress’s ratification

power “elementary,” United States v. Heinszen, 206 U.S. 370, 382 (1907), and recognized that a ratification “is conclusive upon the courts,” Wilson v. Shaw, 204 U.S. 24,

32 (1907).

II.

The FRA Does Not Intrude Upon the Judicial Power

A. Congress intended for the Pipeline-related provisions in the FRA to apply

to pending litigation. See, e.g., § 324(e)(1) (applying the jurisdiction-stripping provision to “any lawsuit pending in a court as of the date of enactment of this section”).

For over two centuries, this Court has consistently held that Congress does not run

afoul of the separation of powers merely by adopting laws that affect pending cases.

See, e.g., Miller v. French, 530 U.S. 327, 349 (2000); United States v. Schooner Peggy,

5 U.S. (1 Cranch) 103, 110 (1801).

Indeed, this Court’s decisions make clear that Congress may “amend the law

and make the change applicable to pending cases, even when the amendment is outcome determinative.” Bank Markazi, 578 U.S. at 215 (emphasis added); see, e.g.,

Patchak, 138 S. Ct. at 905 (plurality opinion) (upholding legislation that established

new legal standards “that apply retroactively to pending lawsuits, even when it effectively ensures that one side wins”); Pennsylvania v. Wheeling & Belmont Bridge Co.,

59 U.S. (18 How.) 421, 429-31 (1855). As Chief Justice Marshall wrote, “if subsequent

to the judgment and before the decision of the appellate court, a law intervenes and

positively changes the rule which governs, the law must be obeyed, or its obligation

denied.” Schooner Peggy, 5 U.S. at 110.

Because courts must apply a new governing law to a pending case, Congress of

course has the power to “direct courts to” do so. Bank Markazi, 578 U.S. at 229. In

fact, Congress may order courts to “apply newly enacted, outcome-altering legislation

in pending civil cases,” even when the legislation governs “one or a very small number

of specific subjects.” Id. at 229, 234. For example, this Court has upheld statutes

that identify cases by name, see, e.g., id. at 232; Robertson v. Seattle Audubon Soc’y,

503 U.S. 429, 440 (1992), and has approvingly cited a D.C. Circuit decision upholding

a statute that retroactively stripped jurisdiction over suits challenging the construction of a single memorial on the National Mall, Bank Markazi, 578 U.S. at 234 (citing

Nat’l Coalition to Save Our Mall v. Norton, 269 F.3d 1092, 1097 (D.C. Cir. 2001)).

The critical question for separation-of-powers purposes is neither the breadth

of the statute nor the number of pending cases it might impact, but whether Congress

has utilized its constitutionally prescribed legislative power or usurped the judicial

power. And that turns on whether Congress has changed the law, as it did here.

“Article III of the Constitution establishes an independent Judiciary … with

the ‘province and duty … to say what the law is’ in particular cases and controversies.” Id. at 225 (second alteration in original) (quoting Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 177 (1803)). Consequently, Congress may not “prescribe or superintend how [the courts] decide” cases. City of Arlington v. FCC, 569 U.S. 290, 297 (2013)

(citation omitted). It is the sole province of the judiciary, rather than the legislature,

to “apply [a] rule to particular cases” and “of necessity expound and interpret that

rule.” Marbury, 5 U.S. at 177.

By contrast, it is the province of Congress to make or amend the law, even

when a new law changes the result of a pending case. See Bank Markazi, 578 U.S. at

229-30 (“[A] statute does not impinge on judicial power” simply because “it directs

courts to apply a new legal standard to” pending cases, even when it “effectively permit[s] only one possible outcome.”). The heart of the issue, then, is whether Congress

has (properly) made new law or (improperly) tried to tell the courts how to apply

existing law to a given set of facts.

For instance, in Robertson, this Court considered a challenge to a statute that

effectively changed the outcome of pending litigation challenging agency action regarding timber harvesting in Pacific Northwest national forests home to the northern

spotted owl. 503 U.S. at 431. It upheld the statute because it “compelled changes in

law, not findings or results under old law.” Id. at 438. And in Bank Markazi, this

Court upheld a statute so specific that it targeted a proceeding by docket number; the

Court did so because the statute established “new substantive standards, entrusting

to the … Court application of those standards to the facts.” 578 U.S. at 231. It noted

that “[a]pplying laws implementing Congress’ policy judgments, with fidelity to those

judgments, is commonplace for the Judiciary.” Id. at 232.

B. To be sure, in Klein, 80 U.S. at 146, this Court stated that Congress may

not “prescribe rules of decision to the Judicial Department of the government in cases

pending before it.” But later decisions have sharply limited the seemingly broad

sweep of this dictum, cautioning that “[o]ne cannot take this language from Klein ‘at

face value’” because “congressional power to make valid statutes retroactively applicable to pending cases has often been recognized.” Bank Markazi, 578 U.S. at 228

(citation omitted).

Klein addressed whether a post-Civil War statute enacted by Congress was

unconstitutional. In an earlier decision, United States v. Padelford, this Court held

that receiving a presidential pardon for disloyal conduct was sufficient proof of loyalty

for purposes of a statute that required those seeking to recover the value of property

seized by Union forces during the Civil War to prove their loyalty. 76 U.S. (9 Wall.)

531, 543 (1869). After this Court decided Padelford, Congress directed courts to dismiss recovery suits brought by those who had received presidential pardons for disloyalty. See Klein, 80 U.S. at 143-44.

The Court in Klein held that the law was unconstitutional because it did not

create any “new circumstances” but instead required courts to deem certain evidence

(i.e., a pardon) insufficient to satisfy a standard established by existing law. Id. at

146-47. The statute effectively prohibited the judiciary from giving “the effect to evidence which, in its own judgment, such evidence should have.” Id. at 147. According

to the Court, the provision essentially prescribed a “rule of decision” because it told

the judiciary “to give [evidence] an effect precisely contrary” to its own judgment. Id.

The Court said that by doing this, Congress “inadvertently passed the limit which

separates the legislative from the judicial power.” Id.

This Court has recognized that Klein is “a deeply puzzling decision.” Bank

Markazi, 578 U.S. at 226 (citation omitted). And it has made clear in subsequent

cases that Klein’s “rules of decision” language means only that Congress “may not

usurp a court’s power to interpret and apply the law to the [circumstances] before it.”

Id. at 225 (alteration in original) (citation omitted). It does not preclude Congress

from changing law that applies to pending litigation. See id. at 215; Plaut, 514 U.S.

at 226. Notably, in the more than 150 years since Klein was decided, “the only case

to strike down a law explicitly on Klein grounds was Klein itself; every Klein-based

challenge to federal legislation has, quite appropriately, failed.” 5 Howard M. Wasserman, The Irrepressible Myth of Klein, 79 U. Cin. L. Rev. 53, 55 (2010).

C. In the FRA, as described above, Congress made several substantive changes

to the law governing the Pipeline. See supra Section I.A. It established new law for

the courts to apply; it created “new circumstances.” It did not purport to direct courts

to make certain findings or reach particular conclusions under old law. Indeed, because of the FRA, the question of whether prior agency actions related to the Pipeline

were consistent with prior law has become moot and is no longer relevant.

For example, when Congress ratifies an action of the Executive Branch, as it

did in the FRA, see § 324(c)(1), that ratification is “equivalent to an original authority,” Mattingly v. District of Columbia, 97 U.S. 687, 690 (1878); Wilson, 204 U.S. at

32. By ratifying an action, Congress “give[s] the force of law to official action” that

may have been “unauthorized when taken.” Swayne & Hoyt, 300 U.S. at 302; see also

Mattingly, 97 U.S. at 690 (stating that Congress by ratification “may therefore cure

irregularities, and confirm proceedings which without the confirmation would be

void”). As a result, particularly in light of the Respondents’ argument below that

5 This makes the single-sentence decisions by the Fourth Circuit even more remarkable.

find that the Respondents had shown a likelihood of success on the merits, the Fourth Circuit, at a

minimum, presumably concluded that the FRA is likely unconstitutional. And based on the arguments

presented below, it likely relied on Klein’s reasoning to do so. That the Fourth Circuit appears to be

bucking 150 years of precedent rejecting this line of argument is further evidence that this Court must

intervene.

agency actions involving the Pipeline were contrary to law, the FRA changes the law

regarding the Pipeline in a fundamental way. It removes any legal doubt about the

validity of those actions by giving them the “force of law,” Swayne & Hoyt, 300 U.S.

at 302, and “cur[ing]” any alleged “irregularities,” such as those advanced by the Respondents, Mattingly, 97 U.S. at 690. See also FRA § 324(f) (Pipeline-related provisions “supersede[] any other provision of law … that is inconsistent with the” relevant

agency actions).

Additionally, any argument that the FRA impermissibly picks a winner in a

specific case, see Bank Markazi, 578 U.S. at 231, falls wide of the mark. Far from

requiring courts to declare one litigant the winner, the FRA creates an objective

standard under new law for courts to interpret and apply in adjudicating challenges

to agency actions related to the Pipeline. For instance, the most relevant provision

applies only to agency action “necessary for the construction and initial operation at

full capacity of the … Pipeline.” FRA § 324(c)(1). To determine if that provision

applies to a given agency action (and thus falls within the statutory ratification), a

court must engage in a quintessentially judicial task—one it is free to perform independently with unfettered judgment. It must apply the new law to a given set of

facts. The judicial task of interpreting and applying the FRA is no different in substance from the judicial task performed in construing countless other federal statutes.

See, e.g., Egelhoff v. Egelhoff ex. rel. Breiner, 532 U.S. 141, 143, 146 (2001) (interpreting a statute to compel dismissal of plaintiff’s claims as preempted because they were

based on state laws that “relate to” employee benefit plans).

To be sure, as we discuss below, the new law in the FRA renders the legal

claims advanced by the Respondents in their petitions for review utterly without

merit. But that does not create a separation-of-powers issue; “a statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts.” Bank Markazi, 578 U.S. at 230. There is no “less a case or controversy

upon which a court possessing the federal judicial power may rightly give judgment”

solely because the arguments are “uncontested or incontestable.” Pope v. United

States, 323 U.S. 1, 11 (1944).

III.

Because the FRA Changed the Law Related to the Pipeline, the Respondents Have No Likelihood of Success on the Merits

Congress changed the substantive law that applies to the Pipeline, and the

agency decisions contested by the Respondents therefore do not violate any federal

law. Their claims are now moot, and they have no chance of success on the merits.

A. The Respondents allege below that the agency decisions violate the Mineral

Leasing Act, the National Forest Management Act, the National Environmental Policy Act, the ESA, and the Administrative Procedure Act. But Congress changed those

laws’ applicability to the Pipeline when it passed the FRA so that any agency action

approving the Pipeline does not (and will not) violate any of those statutes, or indeed

any federal law.

Congress “ratifie[d] and approve[d]” the agency actions at issue “[n]otwithstanding any other provision of law.” FRA § 324(c)(1). This means that the various

statutes that the Respondents rely upon below no longer provide any basis to chal-

lenge the agency actions at issue—the Respondents’ claims are now moot. See Consejo, 482 F.3d at 1174 (“[T]he 2006 Act [which directed an agency to carry out a project

notwithstanding any other provision of law] renders the claims based on past violations of NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the

Settlement Act moot.”); Dole, 870 F.2d at 1423, 1438 (affirming dismissal of a case on

mootness grounds where plaintiffs alleged that an agency approval violated a statute

after Congress passed a law that ordered the agency to approve the project “notwithstanding” the statute that plaintiffs relied upon).

Notably, even if the statutes that the Respondents rely upon were at one time

inconsistent with the agency actions at issue, they now cannot sustain the Respondents’ challenges because the FRA provisions “supersede[] any … law … inconsistent

with the issuance of any” Pipeline approvals. See FRA § 324(f). In other words, the

laws that the Respondents rely upon simply do not apply to the actions they challenge, and they necessarily cannot form the basis of any claim for relief. See Salazar,

672 F.3d at 1175 (rejecting an ESA-based challenge to agency action because “Congress effectively provided that no statute, and this must include the ESA, would apply

to the [action]”).

Finally, Congress’s intent to facilitate the Pipeline’s “timely … construction

and operation,” see FRA § 324(b); see also id. § 324(d), is further evidence that the

otherwise generally applicable regulatory requirements relied upon by the Respondents—that can, and often do, slow down projects—do not apply here. See Consejo,

482 F.3d at 1168-69 (statute that required a project to “proceed ‘without delay’ ‘upon

the enactment’” supported the court’s conclusion that the law exempted a specific

project from generally applicable laws); id. at 1169 (“Each of those claims [alleging

that the project violated statutory requirements], if relief were to be granted, would

delay commencement of the Lining Project. Congress has instructed otherwise [and

the claims are thus moot] ….”).

B. Because Congress ratified the contested agency decisions in the FRA, to

challenge those administrative actions, the Respondents would have to challenge the

FRA itself (and could not rely on the now-superseded generally applicable laws). See

James v. Hodel, 696 F. Supp. 699, 701 (D.D.C. 1988) (“Once Congress has … ratified

agency action by statute, even if that action had been arbitrary and capricious, judicial review requires a challenge to the statute itself.”). But the Respondents would

have no likelihood of success with respect to that challenge, either. For starters, they

are in the wrong court to mount that attack. See FRA § 324(e)(2).6 And while the

D.C. Circuit would have jurisdiction to consider a challenge to the FRA’s validity, as

explained above, any such action would not succeed because Congress acted well

within its legislative authority in passing the FRA.

IV.

The Stays Granted by the Fourth Circuit Directly Obstruct an Important Policy Decision Made by Congress and Are an Affront to the

Separation of Powers

In the FRA, Congress did not just make the determination that the Pipeline

should be finished; it found that the “timely completion of construction and operation

6 As the Applicant has explained, the Fourth Circuit lacks jurisdiction to hear the Respondents’

challenges to the FRA’s validity. See Emergency Appl. 14-17. Jurisdiction to hear those claims lies

“exclusive[ly]” in the D.C. Circuit. FRA § 324(e)(2).

of the … Pipeline is required in the national interest.” Id. § 324(b) (emphasis added).

It noted, for example, that the Pipeline “will serve demonstrated natural gas demand

in the Northeast, Mid-Atlantic, and Southeast regions.” Id. (emphasis added). Indeed, Congress made clear that the federal government should not delay the Pipeline

any further by ordering the Secretary of the Army within twenty-one days to issue all

permits and verifications necessary to complete and allow for the operation of the

Pipeline, the last agency action required to finish the project. In sum, Congress didn’t

decide in the FRA that the Pipeline should be completed at some point in the distant

future; rather, it expressly acted to get the Pipeline operating as quickly as possible.

The unexplained stays issued by the Fourth Circuit directly frustrate that

clear Congressional objective. So long as the stays are in effect, the Pipeline can’t be

finished and begin operating. And given that these are stays that will be in effect

until the appeal is resolved (as opposed to short-term administrative stays), it is likely

that even if the Applicant and federal government ultimately prevail in the Fourth

Circuit, the completion of the Pipeline will be delayed for many months. Therefore,

absent this Court’s intervention, the policy decision made by Congress in the FRA

will not come to fruition: the “timely completion of construction and operation” of the

Pipeline that “is required in the national interest,” FRA § 324(b), will not take place.

To be sure, there are those who, in good faith, strongly oppose the Pipeline

project. But “[w]hatever one thinks of the policy decision Congress made, it was Congress’ prerogative to make it.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519,

599 (2012) (Ginsburg, J., concurring). For “when it comes to the Nation’s policy, the

Constitution gives Congress the reins.” Biden v. Nebraska, 143 S. Ct. 2355, 2381

(2023) (Barrett, J., concurring).

Indeed, in a series of recent decisions, this Court has emphasized that, under

our constitutional system, important policy decisions impacting our nation should be

made by Congress, not federal agencies. See, e.g., id. at 2372-75 (majority opinion);

West Virginia v. EPA, 142 S. Ct. 2587, 2607-16 (2022); Ala. Ass’n of Realtors v. Dep’t

of Health & Hum. Servs., 141 S. Ct. 2485, 2485-90 (2021). That is precisely what

Congress has done here. Through the FRA, the American people’s elected representatives approved the Pipeline, which has been the subject of considerable public debate, by ratifying prior agency actions, requiring agencies to maintain those actions,

and ordering the issuance of the remaining agency decisions necessary for its completion and operation.

As has been explained above, there was no basis for the Fourth Circuit to put

that decision on indefinite hold; the Fourth Circuit has not even offered one. The

stays issued below are an affront to the separation of powers. It is up to Congress to

determine this nation’s energy and environmental policy, not the Fourth Circuit.

This Court should immediately vacate the stays issued below so that the policy decision made by Congress on a matter of national importance may be implemented.

CONCLUSION

For these reasons, this Court should vacate the stays issued by the Fourth

Circuit.

Respectfully submitted,