The U.S. Supreme Court turned down a request by six southwest Virginia landowners to hear their arguments that Congress unconstitutionally gave a federal agency the power to seize their land for a natural gas pipeline.
The decision on May 20 to decline the case a second time leaves a question of jurisdiction unresolved.
In Bohon v. the Federal Energy Regulatory Commission (FERC), landowners challenged the constitutional authority of FERC to issue land use certificates.
The D.C. Circuit had dismissed the landowners’ challenge in 2020, stating that district courts lacked jurisdiction. The petitioners appealed but the original decision was upheld.
The Supreme Court then reviewed and remanded the case back to the lower court in April 2023, but the D.C. Circuit upheld its previous decision that it didn’t have jurisdiction.
“After a careful review of Axon and the parties’ briefs, we again conclude that the Natural Gas Act explicitly strips district courts of jurisdiction to review a FERC certificate after a court of appeals receives the record in a suit challenging that certificate,” the appellate court wrote after hearing the case again.
“We therefore reinstate our previous judgment affirming the district court.”
After the Supreme Court sent the case back to the lower court, Congress enacted and the president signed into law the Fiscal Responsibility Act of 2023, aimed at streamlining environmental permitting.
The landowners state that a section of the act that is unrelated strips the Fourth Circuit (the D.C. Circuit) of jurisdiction over environmental claims.
They say that the other parties used the obscure section in the new law to stall the case while construction “proceeded full steam ahead.”
“The Landowners countered that these were transparent stall tactics,” attorneys for the petitioners wrote in a statement after the high court’s decision this week.
“The D.C. Circuit then reinstated the same vacated decision. After a year of irreparable damage to the land, Landowners returned to the Supreme Court. But the Court did not take up the case again.”
Those attorneys stated that they were disappointed by the high court’s decision.
“We got summary disposition last year—which was a big win because that means we had a majority of the court voting to vacate the lower court’s decision—but the Supreme Court takes fewer than 1% of cases each year,” the landowners’ attorney, Mia Yugo, said in the written statement.
Ruling and Case Context
The high court on May 20 denied the attempt by the petitioners to rehear the case, with no accompanying explanation.The original case involves landowners (petitioners) challenging FERC and Mountain Valley Pipeline, LLC (respondents) under the Non-Delegation Doctrine. This doctrine questions whether Congress can delegate its legislative powers to agencies without clear guidelines.
The dispute arises from a conflict over landowners’ property affected by a FERC-approved pipeline project. The core issue is the constitutionality of FERC’s enabling legislation under the Non-Delegation Doctrine. The petitioners argue that FERC lacks clear legislative guidelines, which violates the separation of powers principle.
The landowners argued that district courts have jurisdiction to hear structural constitutional claims, regardless of agency proceedings.
The D.C. Circuit’s dismissal relied on the existence of an agency order, which the petitioners argue is a misinterpretation of jurisdictional requirements.
The petitioners assert that the Supreme Court’s unanimous decision in Axon Enterprise v. FTC from 2023 supports their position that the nature of the constitutional claim, not the procedural status of an agency order, determines jurisdiction.
In Axon, the Supreme Court ruled that federal courts have the authority to hear constitutional challenges to the structure of the FTC without requiring plaintiffs to go first through the agency’s own adjudication process.
The Supreme Court unanimously decided in favor of Axon, which should ensure that such challenges can be directly addressed by federal courts.
The Mountain Valley Pipeline (MVP) is a 303-mile natural gas pipeline system from northwestern West Virginia to southern Virginia, regulated by FERC and owned by Mountain Valley Pipeline, LLC, a joint venture involving Equitrans Midstream Corporation and other energy companies, according to the project’s website.
New Developments
Earlier this month, attorneys representing the petitioners sent a letter to the court to inform them of new developments, including that a pressurized pipe burst on Bent Mountain during hydrostatic testing, causing fear among property owners.The attorneys in the letter said the incident highlighted the critical importance of maintaining structural limitations and political accountability when eminent domain is used.
The letter argues that such coercive power should be vested in the legislature, not in unelected agencies or private actors, emphasizing the constitutional need for accountability and protection of property rights.
Another legislative development since the case was first brought is the Fiscal Responsibility Act of 2023, also known as the Debt Bill. It includes a provision that attempts to strip jurisdiction from courts over certain environmental claims.
The respondents tried to apply section 234 to this case, while petitioners argue that this application is not only wrong but unconstitutional.
“The only difference between last year (Bohon I) and this year (Bohon II) is section 324, another issue that has also never been adjudicated,” Ms. Yugo said in the statement.
“We still maintain that Congress cannot strip the judiciary of the power to review constitutional claims like this one. Nor has the Supreme Court said today that we are wrong.
“That type of precedent would be extremely dangerous for the country and we predict this issue will almost certainly reappear in other cases.”
Ms. Yugo continued to state that the practical effect of the ruling is that the landowners have been denied their day in court and handed a great injustice.
“Section 324 is merely a royal proclamation from the king attempting to bypass the rule of law governing all others,” she said in the statement. “It does not amend or cure the glaring constitutional defects in the NGA. Nor does it change any laws for MVP’s market competitors, which distorts the free market.
“If Congress wanted to seize our clients’ land, they should have voted and done so. Congress chose not to do that because it is politically unpopular. Instead, Congress plays Pontius Pilate, divorcing itself from political accountability for this land grab.
“Section 324 was inserted into the FRA through political machinations and backroom deals to avoid default on the nation’s debt. Otherwise, it would not have seen the light of day.”
Ms. Yugo stated the attorneys had done “all they could do” but that she would bring the case again “very soon.”
