Above Photo: Construction crews were back at work on Thursday along an unfinished Mountain Valley Pipeline section south of Boones Mill in Franklin County. David Hungate, The Roanoke Times.
Environmental groups say Congress violated the separation of powers doctrine when it passed the law.
In asserting its power over that of the courts, Congress violated the separation of powers doctrine when it parachuted in to save the Mountain Valley Pipeline.
That is what environmental groups contend in written arguments filed with a federal appeals court. Proving it, however, may be another matter.
“It’s a very tricky legal question,” said Evan Zoldan, a professor at the University of Toledo’s law school who has read the legal briefs in a case that raises a fundamental question: Did Congress breach the U.S. Constitution when it passed a law that fast-tracks completion of the controversial pipeline?
Long delayed by lawsuits, and facing yet another round of litigation, Mountain Valley was bailed out last month by the Fiscal Responsibility Act.
A section of that law that had nothing to do with its primary purpose — raising the federal debt ceiling and averting a budget crisis — ordered federal agencies to issue all permits for the project while allowing it to sidestep any remaining legal challenges.
Lawyers for Mountain Valley recently asked the 4th U.S. Circuit Court of Appeals to dismiss two pending lawsuits, arguing that the law strips the court of its jurisdiction.
A coalition of organizations that includes Appalachian Voices, the Sierra Club and The Wilderness Society counter that the law is unconstitutional.
Zoldan, who teaches legislation and administrative law and is an expert on the separation of powers, said the Fourth Circuit is being asked to clarify the limits on Congress’s ability to redefine a court’s jurisdiction.
“On one hand, what Congress did appears to be run-of-the mill legislation,” Zoldan said. “Congress is generally allowed to set the jurisdiction of federal courts.”
“On the other hand, there’s a long-standing principle that says when Congress provides a rule of decision for the courts to follow, then it might be doing something that looks a lot like judicial action.”
Generally, a “rule of decision” means a directive from lawmakers on what a court must do. “But what it means precisely is the $64,000 question,” Zoldan said — a question that is now being raised anew.
“If the effect of the statute is to guarantee the outcome for a particular party in a pending case, it stops looking like Congressional action and starts looking a lot more like what courts are supposed to do, which is to resolve pending cases,” he said.
The basis for that argument goes back to 1871, when the U.S. Supreme Court made a landmark decision in a case that involved cotton, the Civil War and Congress.
At issue were presidential pardons that allowed former supporters of the Confederacy to petition for the return of their property taken by the federal government. John A. Klein, the administrator of an estate from which $125,000 worth of cotton was seized, cited the pardon in a request for compensation, which was granted by the Court of Claims.
While an appeal by the government was pending, Congress passed a law that removed the Court of Claims’ jurisdiction and required Klein’s case to be dismissed.
In so doing, the legislative branch violated the separation of powers doctrine by stripping jurisdiction from the lower court “as a means to an end” of having the case thrown out, the Supreme Court held.
More than a century and a half later, Congress did the same thing when it removed the Fourth Circuit’s authority to hear challenges of government permits issued to Mountain Valley, environmental groups contend.
“Whatever happened to checks and balances?” asked Caroline Hansley, senior campaign representative for the Sierra Club.
“Congress should never have overextended its powers to try to tell the courts how to do their jobs,” Hansley said in a written statement. “When communities, climate, and habitats are at risk, there is just too much at stake.”