UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CLETUS WOODROW & BEVERLY BOHON, et al.,
Plaintiffs, v. Civil Action No. 20-6 (JEB)
FEDERAL ENERGY REGULATORY COMMISSION, et al.,
Defendants.
MEMORANDUM OPINION
This case presents the latest trickle in a veritable flood of litigation relating to Defendant
Mountain Valley Pipeline, LLC’s proposed construction of a natural-gas pipeline through
Virginia and West Virginia. In October 2017, Defendant Federal Energy Regulatory Commission
granted MVP a certificate that permitted the company to build the pipeline and enabled it to
exercise the agency’s eminent-domain authority to do so. That approval has thus far withstood
various administrative challenges as well as review in multiple federal courts of appeals.
Not easily deterred, Plaintiffs –– homeowners along the proposed pipeline’s path ––
bring another suit, this one featuring constitutional challenges to FERC’s enabling statute, the
Natural Gas Act. They seek, among other things, a nationwide injunction ending the existing
FERC pipeline-approval process and voiding all pipeline certificates, including the one issued to
MVP. The NGA, however, channels review of FERC decisions relating to pipelines –– including
constitutional claims inhering in those controversies –– to the agency, not to a district court.
Plaintiffs’ attempt to transform their grievance with FERC over the MVP certificate into a facial
1 constitutional challenge cannot save them from the statutorily mandated administrative-review
process. The Court will therefore dismiss the case for lack of subject-matter jurisdiction.
I. Background
A. Statutory Background
Congress enacted the NGA, 15 U.S.C. § 717, et seq., “with the ‘principal purpose’ of
‘encouraging the orderly development of plentiful supplies of natural gas at reasonable prices.’”
Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1307 (D.C. Cir. 2015)
(alterations omitted) (quoting NAACP v. Fed. Power Comm’n, 425 U.S. 662, 669–70 (1976)).
“The Act vests FERC with broad authority to regulate the transportation and sale of natural
gas in interstate commerce.” Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d
97, 101 (D.C. Cir. 2014). The agency’s responsibilities include the authorization of interstate
natural-gas pipelines, such as the MVP project at issue here. See 15 U.S.C. § 717f(c)).
The “keystone” of FERC’s pipeline-authorization process is the so-called “certificate of
public convenience and necessity.” Bold All. v. FERC, No. 17-1822, 2018 WL 4681004, at *1
(D.D.C. Sept. 28, 2018) (quoting 15 U.S.C. § 717f(d)). These certificates, which permit “the
construction or extension of natural gas transportation facilities,” are a prerequisite for the
construction of any interstate natural-gas pipeline. Myersville, 783 F.3d at 1307 (citing 15
U.S.C. § 717f(c)). According to the NGA, FERC “shall” issue a certificate “to any qualified
applicant” upon a finding that “the applicant is able and willing properly to do the acts and to
perform the service proposed,” and that the proposed service or construction “is or will be
required by the present or future public convenience and necessity.” 15 U.S.C. § 717f(e).
FERC’s issuance of a certificate, moreover, conveys the power of eminent domain to its holder.
2 Id. § 717f(h). Armed with that authority, the certificate holder can initiate condemnation
proceedings as necessary. Id.
FERC’s issuance of a certificate represents the culmination of an extensive application
process and sets into motion elaborate review mechanisms. First, in order to receive the
certificate, the applicant must submit reams of technical, economic, and environmental
information concerning the project. See 18 C.F.R. § 157.6(b) (application content requirements
including “detailed cost of service data”). The applicant must also make a “good faith effort to
notify all affected” landowners, towns, communities, and government agencies, and any
interested party, including environmental and tribal groups may intervene in the proceeding to
file comments of their own. Id. §§ 157.6(d), 157.10. After a lengthy review of these
materials — along with the consideration of a number of factors, such as the project’s
environmental impact and whether its “public benefits” outweigh the “potential adverse
consequences” ––– the agency may grant the certificate. Certification of New Interstate Natural
Gas Pipeline Facilities, 88 FERC ¶ 61,227 (Sept. 15, 1999), clarified, 90 FERC ¶ 61,128 (Feb. 9,
2000), further clarified, 92 FERC ¶ 61,094 (July 28, 2000) (FERC’s policy statement outlining
certificate-issuance criteria).
Next, “aggrieved” persons, ranging from the applicants themselves to interested
homeowners, advocacy groups, and state and local governments, may challenge FERC’s
decision or ask for modifications of its order. See 15 U.S.C. § 717r(a). To do so, they must first
file for rehearing before the agency. Id. If FERC declines to rehear the matter or issues a final
order regarding it, the parties may then file a petition for review in the appropriate court of
appeals. Id. Upon the filing of such a petition, the court of appeals retains “exclusive”
jurisdiction to affirm, modify, or set aside such an order “in whole or in part.” Id. § 717r(b)
3 (emphasis added). The petitioners may not raise new objections to the agency’s order in the
court of appeals unless “there is reasonable ground for [the] failure” to offer them previously. Id.
B. MVP Project and Related Litigation
This dispute traces its roots to October 2015, when MVP set the above-described process
in motion by filing an application with FERC to maintain, construct, and operate a pipeline
running from Wetzel County, West Virginia, to Pittsylvania County, Virginia. See Mountain
Valley Pipeline, LLC Equitrans, L.P., 161 FERC ¶ 61043 p. 1 (Oct. 13, 2017). After two years
of review, including reflection on hundreds of comments from interested parties, FERC issued
MVP the coveted certificate of authorization. Id.
Over twenty affected landowners, environmental organizations, and tribal groups sought
rehearing of FERC’s issuance of the certificate, which the agency rejected in a lengthy opinion
affirming its prior conclusions. See Mountain Valley Pipeline, LLC Equitrans, L.P., 163 FERC
¶ 61197 (June 15, 2018). Many of those same parties then petitioned for review in the D.C.
Circuit, lodging sixteen different challenges, both statutory and constitutional, relating to the
certificate’s issuance. See Appalachian Voices v. FERC, No. 17-1271, 2019 WL 847199, at *1
(D.C. Cir. Feb. 19, 2019). The Court of Appeals affirmed the agency’s decision and, in doing so,
rejected the petitioners’ constitutional claims grounded in the Fifth Amendment’s Due Process
and Takings Clauses. Id. at *2–3.
While the MVP project flowed through the agency and into the Circuit, a separate group
of landowners along the pipeline’s path brought suit in the Western District of Virginia arguing
–– as Plaintiffs do here –– that the NGA constitutes an impermissible delegation of legislative
authority to the agency. Berkley v. Mountain Valley Pipeline, LLC, No. 17-357, 2017 WL
6327829, at *2 (W.D. Va. Dec. 11, 2017). The district court dismissed the case, concluding that
4 the NGA stripped it of jurisdiction over those claims, id. at *1, and the Fourth Circuit affirmed.
See 896 F.3d 624, 627 (4th Cir. 2018), cert. den. sub nom. Berkley v. FERC, 139 S. Ct. 941
(2019).
Finally, and concurrently with the Virginia action, a group of similarly aggrieved
landowners –– including two of the very same Plaintiffs in this action –– filed suit in this district
against MVP and FERC, arguing, inter alia, that the certificate program created by the NGA
delegates legislative power to the agency in violation of the Constitution. See Bold All., 2018
WL 4681004, at *1; see also id. ECF No. 1 (Bold Alliance Complaint), ¶¶ 81–86. The court
dismissed the suit for lack of jurisdiction, concluding that the NGA “provides a specific
procedural path for review: seeking a rehearing before FERC, followed by filing a petition for
review with the appropriate court of appeals,” which the plaintiffs could not bypass by framing
their claims as constitutional challenges. Bold All., 2018 WL 4681004, at *1.
C. Factual and Procedural History
Ensuring that this new year would not proceed far without its own MVP-related
challenge, Plaintiffs –– six landowners whose property interests will be affected by the
project — filed their Complaint on January 2, 2020. MVP seeks access to almost three acres of
Cletus and Beverly Bohon’s property in Ellison, Virginia, for the pipeline. See ECF No. 1
(Complaint), ¶ 1. The Bohons have refused to sell, and MVP now seeks to exercise eminent
domain over the property. Id. Similarly, the company proposes to exercise its power to
construct an easement over Robert and Aimee Hamm’s family home on Bent Mountain in
Virginia and to take 5.88 acres of land from Wendell and Mary Flora’s farmhouse in Franklin
County, Virginia. Id., ¶¶ 2–3.
5 All three counts of the Complaint allege that the NGA is facially unconstitutional, but for
purportedly different reasons. Count I alleges that the Act is infirm because Congress has
delegated to FERC “legislative power” in granting the agency “unfettered discretion to . . . grant
certificates of public convenience and necessity.” Id., ¶¶ 40–47. Count II alleges that the NGA
improperly allows FERC to transfer its eminent-domain authority to private entities, which
violates “the separation of powers and non-delegation doctrine.” Id., ¶¶ 48–53. Count III, pled
in the alternative to Count II, asserts that the unconstitutionality lies in the Act’s delegation to
FERC of the legislative power of exercising eminent-domain authority. Id., ¶¶ 54–64.
Plaintiffs’ requested relief is breathtaking in scope. They seek a declaration that: (1) the
NGA’s delegation of eminent-domain authority to FERC or to any private entity “including
MVP” is unconstitutional; (2) FERC has no power to issue certificates to applicants seeking to
use the power of eminent domain; and (3) all such certificates previously issued are void. Id. at
14–15. They also request an injunction preventing FERC from issuing further certificates and
prohibiting the agency or any private entity from exercising eminent-domain authority. Id. at 15.
Defendants FERC and MVP now separately move to dismiss for lack of jurisdiction or, in the
alternative, for failure to state a claim, and Plaintiffs oppose those Motions.
II. Standard of Review
Defendants’ Motions invoke the legal standards for dismissal under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). When a defendant brings a Rule 12(b)(1) motion to
dismiss, the plaintiff must demonstrate that the Court indeed has subject-matter jurisdiction to
hear his claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v.
U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). “Absent subject matter jurisdiction over
a case, the court must dismiss [the claim].” Bell v. U.S. Dep’t of Health & Human Servs., 67 F.
6 Supp. 3d 320, 322 (D.D.C. 2014). “Because subject-matter jurisdiction focuses on the court’s
power to hear the plaintiff’s claim, a Rule 12(b)(1) motion [also] imposes on the court an
affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.”
Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001).
In policing its jurisdictional borders, a court must scrutinize the complaint, treating its
factual allegations as true and granting the plaintiff the benefit of all reasonable inferences that
can be derived from the alleged facts. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249,
1253 (D.C. Cir. 2005). The court need not rely “on the complaint standing alone,” however, but
may also look to undisputed facts in the record or resolve disputed ones. See Herbert v. Nat’l
Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
Rule 12(b)(6), conversely, provides for the dismissal of an action where a complaint fails
to “state a claim upon which relief can be granted.” Although “detailed factual allegations” are
not necessary to withstand a Rule 12(b)(6) motion, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). For a plaintiff to survive a 12(b)(6) motion, the facts alleged in the complaint “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555–56.
III. Analysis
Defendants initially argue that the Court lacks subject-matter jurisdiction over Plaintiffs’
claims. They also assert that the counts are barred by issue preclusion and res judicata and that
they fail to state plausible claims for relief. As courts must always ensure themselves of their
jurisdiction before proceeding to the merits, the Court will begin and end there.
7 Defendants contend that the text of the NGA explicitly bars federal district courts from
reviewing claims of the nature that Plaintiffs bring here –– that is, challenges relating to the
natural-gas pipeline-certification process. They argue that this jurisdictional mandate is also
implicit in the structure of the NGA’s review scheme. Plaintiffs acknowledge that the Act
demands administrative review of FERC’s individual decisions but counter that it permits
immediate Article III adjudication of related constitutional challenges.
At the outset, the Court notes that the heavy weight of precedential authority lies with
Defendants on these questions. As discussed in more detail below, a slew of district courts and
two courts of appeals have held that federal district courts do not have subject-matter jurisdiction
over constitutional challenges to FERC’s actions or enabling statute brought by “aggrieved”
parties seeking the injunction of a certificate (or, in this case, every FERC certificate). See, e.g.,
Berkley, 2017 WL 6327829, at *4 (“[P]laintiffs have not cited a single case where a district court
exercised jurisdiction over claims — whether characterized as constitutional challenges or
otherwise — that would require a modification of a FERC order if the claims were successful.”);
N.J. Conservation Found. v. FERC, 353 F. Supp. 3d 289, 299 (D.N.J. 2018) (“[T]he law is
indeed ‘well-settled’ that the NGA’s exclusivity provision has broad reach over challenges
brought against FERC, including constitutional claims.”). Not one has held to the contrary.
Most notably, as mentioned above, the Fourth Circuit has affirmed the dismissal for lack
of jurisdiction of a suit almost identical to this one –– a nondelegation claim brought against
FERC and MVP by homeowners along this very pipeline’s proposed path. Berkley, 896 F.3d at
627; Berkley, 2017 WL 6327829, at *2. A court in this district has done the same, dismissing
constitutional claims against FERC and MVP brought by two of the same Plaintiffs in this
matter. See Bold All., 2018 WL 4681004, at *4. Sometimes there may be cause to stand out
8 from the crowd, but for the reasons that follow, the Court will side with the collective wisdom
here. Its discussion begins with an analysis of the express terms of the Act and then considers its
implicit meaning.
A. Express Channeling of Review
“Within constitutional bounds, Congress decides what cases the federal courts have
jurisdiction to consider.” Jarkesy v. SEC, 803 F.3d 9, 15 (D.C. Cir. 2015) (quoting Bowles v.
Russell, 551 U.S. 205, 212 (2007)). “If a special statutory review scheme exists, . . . ‘it is
ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining
judicial review in those cases to which it applies.’” Id. (quoting City of Rochester v. Bond, 603
F.2d 927, 931 (D.C. Cir. 1979)).
The NGA has such a special statutory-review scheme, and it expressly applies to
Plaintiff’s claims. As explained above, any person “aggrieved by an order issued by the
Commission” may apply for a rehearing. See 15 U.S.C. § 717r. Only once that administrative
process has concluded may the “aggrieved” person petition for review “in the court of appeals of
the United States for any circuit wherein the natural-gas company to which the order relates is
located or . . . in the United States Court of Appeals for the District of Columbia.” Id. § 717r(b).
Upon the filing of such a petition, the appellate court shall have “exclusive” jurisdiction to
“affirm, modify, or set aside [the] order.” Id. Furthermore, the Act’s administrative-exhaustion
requirement forecloses the assertion of new claims not previously considered by the agency. Id.
The NGA’s jurisdictional provision is broad. The Supreme Court has interpreted an
identical provision in the Federal Power Act to “preclude[ ] de novo litigation between the
parties of all issues inhering in the controversy, and all other modes of judicial review.’” City of
Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958) (emphasis added). As the Tenth
9 Circuit has commented, one “would be hard pressed to formulate a doctrine with a more
expansive scope” than the “inhering in the controversy” standard. Williams Nat. Gas Co. v. City
of Oklahoma City, 890 F.2d 255, 262 (10th Cir. 1989) (applying standard to NGA). Courts have
therefore concluded that the NGA provides the “exclusive remedy for matters relating to the
construction of interstate natural gas pipelines,” “nullifying any procedural alternatives an
aggrieved party may otherwise have.” Adorers of the Blood of Christ v. FERC, 897 F.3d 187,
195 (3d Cir. 2018), cert. denied, 139 S. Ct. 1169 (2019) (rejecting Religious Freedom
Restoration Act claim relating to FERC-approved pipeline).
As homeowners along the proposed pipeline, Plaintiffs qualify as “aggrieved parties”
under the Act and therefore should have availed themselves of the NGA’s review process. Their
standing arguments and the fact that they name MVP as a Defendant make clear that their bone
of contention is with the agency’s decision to permit MVP to exercise eminent domain over their
properties. See Bold All., 2018 WL 4681004, at * 5 (reaching same conclusion concerning
nondelegation challenge brought by homeowners affected by MVP project). The remedy they
seek entails this Court’s “set[ting] aside” FERC’s certificate granted to MVP (along with those
granted to all other companies), an authority the NGA grants to only the court of appeals
reviewing the FERC order. See 515 U.S.C. § 717r. The Act, moreover, explicitly “allows for
district court jurisdiction over certain actions, such as condemnation proceedings.” Berkley, 896
F.3d at 630 (citing 15 U.S.C. § 717f(h)). Congress therefore knew how to create exceptions to
the statutory-review scheme when it wanted to, and “nothing in the Natural Gas Act indicates”
that it intended to create other exceptions “except those . . . specifically set out.” Id. In sum,
Plaintiffs’ constitutional challenges “inhere” in their “controversy” with FERC and MVP over
10 the pipeline, and the NGA explicitly places jurisdiction over this controversy with the agency
and ultimately the court of appeals.
Plaintiffs rejoin that they may evade the NGA’s jurisdictional provision because they are
not challenging a particular FERC order but rather Congress’s unconstitutional delegation of
legislative authority to FERC generally (and, in turn, to MVP) via the NGA. Arguments of this
shade have been rejected by every court to have considered them. See, e.g., Bold All., 2018 WL
4681004 at *4 (“Courts have affirmed the exclusive nature of the FERC procedures time and
again.”); N.J. Conservation Found, 353 F. Supp. 3d at 299 (“[T]he NGA’s exclusivity provision
has broad reach over challenges brought against FERC, including constitutional claims.”). These
courts have reasoned that because “exclusive means exclusive,” federal district judges may not
exercise jurisdiction over claims formed not as a direct challenge to an agency order but instead
seeking to enjoin an order by other means. See Am. Energy Corp. v. Rockies Express Pipeline
LLC, 622 F.3d 602, 605 (6th Cir. 2010) (affirming dismissal for lack of jurisdiction under NGA
where landowners sued to enjoin building of pipeline and recover tort damages for conversion).
The Act simply does not “bifurcat[e] . . . judicial review along substantive lines,” and for
good reason. Williams Nat. Gas Co., 890 F.2d at 262. The exhaustion requirement and the
granting of “exclusive” jurisdiction over pipeline approvals “would be entirely undermined if
unhappy parties could come to district courts, seeking relief under the [Constitution].” Lovelace
v. United States, No. 15-30131, 2016 WL 10826764, at *1 (D. Mass. Feb. 18, 2016). To permit
parties to reserve constitutional arguments for a later round of litigation “would negate most of
the benefits attending the ‘exclusive’ scheme of review” –– namely, finality and avoidance of
piecemeal litigation. Williams Nat. Gas Co., 890 F.2d at 262; see also City of Rochester v.
Bond, 603 F.2d 927, 936 (D.C. Cir. 1979) (special-review schemes “disfavor bifurcating
11 jurisdiction over various substantive grounds between district court and the court of appeals”
because of “likelihood of duplication and inconsistency”).
Bifurcation and duplicative litigation are on display here in spades: Plaintiffs bring a suit
nearly identical to one already dismissed by a sister court and call on this Court to enjoin a FERC
certificate already approved by the Court of Appeals. For these reasons, Defendants also offer
strong arguments that this litigation is precluded by either res judicata or issue preclusion.
Because it lacks subject-matter jurisdiction over Plaintiffs’ claims, the Court need not reach
those issues. That they arise, however, speaks to the duplicative nature of collateral
constitutional attacks on FERC’s pipeline process brought outside of the administrative-review
scheme.
B. Implicit Divesting of Jurisdiction
Even if the statute does not expressly divest the Court of jurisdiction over this case, it
does so implicitly. See Adorers, 897 F.3d at 195 (finding that NGA both expressly and
implicitly precluded exercise of jurisdiction over RFRA challenge). In Thunder Basin Coal
Company v. Reich, 510 U.S. 207 (1994), the Supreme Court devised a two-step framework for
ascertaining whether a review scheme such as that at issue here “allocate[s] initial review” of a
specific claim “to an administrative body.” Id. at 212. A court must consider (i) whether “such
intent is ‘fairly discernible in the statutory scheme,’ and (ii) [whether] the litigant’s claims are ‘of
the type Congress intended to be reviewed within [the] statutory structure.’” Jarkesy, 803 F.3d at
15 (second alteration in original) (quoting Thunder Basin, 510 U.S. at 207, 212).
For the reasons described above –– namely, the Act’s “exclusive” jurisdictional provision
and exhaustion requirement –– Congressional intent to channel Plaintiffs’ claims to the agency-
review process is “fairly discernible” in the NGA. See Berkley, 896 F.3d at 629–30 (text and
12 structure of NGA evince congressional intent to remove district-court jurisdiction over
nondelegation-doctrine claim related to pipeline); see also Adorers, 897 F.3d at 195 (“Congress’
intent to vest jurisdiction [over RFRA claim relating to pipeline] in circuit courts is ‘fairly
discernible’ in the [NGA].”). The Court will therefore proceed to the second step: whether
Plaintiffs’ claims are of the type Congress intended to be reviewed within the statutory structure.
To ascertain whether Congress has implicitly channeled review in such a way, courts
consider “[i] if ‘a finding of preclusion could foreclose all meaningful judicial review’; [ii] if the
suit is ‘wholly collateral to a statute’s review provisions’; and [iii] if the claims are ‘outside the
agency’s expertise.’” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 489
(2010) (quoting Thunder Basin, 510 U.S. at 212–13). These considerations are not “distinct
inputs in a strict mathematical formula” but rather “general guideposts useful for channeling the
inquiry into whether the particular claims at issue fall outside an overarching congressional
design.” Jarkesy, 803 F.3d at 17. The Court will take each one in turn.
Meaningful Judicial Review
First, and crucially, a finding of preclusion here does not foreclose “all meaningful
judicial review” of claims of the nature Plaintiffs assert. On the contrary, the Act expressly
provides for judicial review. See 15 U.S.C. § 717r(b). As many others have done, Plaintiffs
could have participated in the MVP-certification process, requested rehearing by the agency, and
ultimately appealed to the Circuit, raising constitutional challenges. See Appalachian Voices,
2019 WL 847199, at *2–3 (affirming issuance of certificate to MVP and addressing Fifth
Amendment challenges). Plaintiffs’ submissions notwithstanding, in deciding petitions for
review from agency decisions, the courts of appeals have addressed facial constitutional
challenges to a range of statutes, including the NGA. See Metzenbaum v. FERC, 675 F.2d 1282,
13 1288–89 (D.C. Cir. 1982) (rejecting claim that NGA is facially unconstitutional on petition for
direct review from agency); see also Lucia v. SEC, 138 S. Ct. 2044, 2050–51 (2018) (addressing
Appointments Clause challenge reviewed by court of appeals after consideration by agency);
Blinder, Robinson & Co. v. SEC, 837 F.2d 1099, 1103–04 (D.C. Cir. 1988) (addressing removal-
powers challenge on appeal from agency proceeding); Sorrell v. SEC, 679 F.2d 1323, 1325–26
(9th Cir. 1982) (addressing, on direct review of agency order, challenge that Congress
unconstitutionally delegated legislative power to private entity); but see NO Gas Pipeline v.
FERC, 756 F.3d 764, 767–69 (D.C. Cir. 2014) (dismissing for lack of jurisdiction claim that
Federal Budget Act unduly influences FERC decisionmaking because, unlike the claims here,
challenge concerned Budget Act and petitioner did not qualify as “aggrieved party” under NGA).
Plaintiffs counter that because FERC itself is not authorized to render a decision on their
constitutional claims in the first instance, they are “deprived of meaningful review” even if a
court of appeals can ultimately consider them. They are mistaken. The Supreme Court and D.C.
Circuit have made clear that a constitutional challenge does not retain such “talismanic
significance.” Jarkesy, 803 F.3d at 18. As the Circuit answered this question in Jarkesy:
“Because [the plaintiff’s] constitutional claims, including his non-delegation challenge . . . , can
eventually reach ‘an Article III court fully competent to adjudicate’ them, it is of no dispositive
significance whether the [agency] has the authority to rule on them in the first instance during the
agency proceedings.” Id. at 19 (emphasis added); see also Elgin v. U.S. Dep’t of Treasury, 567
U.S. 1, 17 (2012) (constitutional claims “could be ‘meaningfully addressed in the Court of
Appeals,’” even if agency could not adjudicate them in first instance) (quoting Thunder Basin,
510 U.S. at 215); Berkley, 896 F.3d at 631 (“FERC’s inability to resolve Plaintiffs’ constitutional
14 claims does not mean that the statutory scheme deprives Plaintiffs of meaningful judicial
review.”).
Wholly Collateral
Next, Plaintiffs’ claims are not “wholly collateral” to the Natural Gas Act’s review
scheme because, as explained above, they “inhere in the controversy” over the MVP Project. As
the Fourth Circuit reasoned in Berkley, the homeowners’ constitutional claims supply “the
means by which they seek to vacate the granting of the Certificate to Mountain Valley Pipeline.”
896 F.3d at 632. Should Plaintiffs be “successful on [their] constitutional claims, the FERC
order would necessarily be invalidated.” N.J. Conservation Found., 353 F. Supp. 3d at 307; see
also Elgin, 567 U.S. at 21–22 (where plaintiff’s constitutional claims were “vehicle” by which
they sought to reverse agency decision, they were not “wholly collateral” to statutory-review
scheme). In this way, then, they cannot be considered “wholly collateral” to the statutory-review
process.
Plaintiff attempts to rebut this conclusion by relying on two cases. Neither is persuasive.
In Free Enterprise, the plaintiffs brought an Appointments Clause challenge to the Public
Company Accounting Oversight Board established by the Sarbanes-Oxley Act directly in federal
district court. See 561 U.S. at 488–90. The Supreme Court held that though the Act created an
administrative-review structure, the suit was “wholly collateral” to that scheme, and the district
court thus had jurisdiction to consider it. This was so because the plaintiffs’ constitutional claim
was entirely unrelated to any particular action taken by the Board. Id. Indeed, the plaintiffs
there would likely have needed to “bet the farm” and incur a sanction from the Board in order to
gain access to that administrative-review scheme. Id. at 490 (quoting MedImmune, Inc. v.
15 Genentech, Inc., 549 U.S. 118, 129 (2007)). Not so here where Plaintiffs could have availed
themselves of the agency and ultimately the D.C. Circuit.
Similarly, our Court of Appeals has held that the NGA’s judicial-review provision did not
apply to a “structural-bias” claim brought by environmentalists asserting that the Budget Act
impermissibly encourages FERC to approve natural-gas pipelines. Del. Riverkeeper Network v.
FERC, 895 F.3d 102, 107 (D.C. Cir. 2018). While the Circuit did not rely on the Thunder Basin
analysis, this systemic challenge to the Budget Act’s influence on FERC was unrelated to a
FERC Order and was in fact collateral to the NGA itself. Id.; see also NO Gas Pipeline, 756
F.3d at 769 (“Insofar as [the plaintiff] sets forth a statutory quarrel, its complaint is against the
Budget Act and the financial structure that it creates.”). The Circuit’s “narrow[ ] jurisdictional
holding” in Delaware Riverkeeper therefore has no application here. Id.
In sum, the NGA does not channel every person with standing to challenge the statute to
FERC, only those “aggrieved by” a specific pipeline-certification issuance who have access to
the administrative-review scheme in the first instance.
Outside the Agency’s Expertise
Finally, as to the third factor, “agency expertise may be brought to bear” on Plaintiffs’
claims, even though they are constitutional in nature. Am. Fed’n of Gov’t Employees, AFL-CIO
v. Trump, 929 F.3d 748, 760 (D.C. Cir. 2019) (quoting Jarkesy, 803 F.3d at 29). Plaintiffs argue
the converse, noting that FERC retains neither the authority to strike down the NGA on
constitutional grounds nor the ability to meaningfully analyze constitutional claims. Yet “an
agency’s relative level of insight into the merits of a constitutional question is not determinative”
in answering this question. Id. at 761 (quoting Jarkesy, 803 F.3d at 28–29). Even though FERC
cannot rule on the constitutionality of the NGA, its expertise can “be brought to bear” on “many
16 threshold questions that may accompany a constitutional claim.” Elgin, 567 U.S. at 22–23
(quoting Thunder Basin, 510 U.S. at 214–15).
As the Circuit has confirmed, first, the agency “could offer an interpretation of [a statute]
in the course of the proceeding that might answer or shed light on [a] non-delegation challenge.”
Jarkesy, 803 F.3d at 29. “After all, there are precious few cases involving interpretation of
statutes authorizing agency action in which [Article III] review is not aided by the agency’s
statutory construction.” Am. Fed’n of Gov’t Employees, 929 F.3d at 761 (quoting Jarkesy, 803
F.3d at 29). Put differently, before it strikes down a statute on the ground that it
unconstitutionally delegates legislative power, the court of appeals would likely benefit from the
agency’s elaboration on how it perceives and exercises that power.
Alternatively, agency review could “‘obviate the need to address’ broad constitutional
and statutory claims” because the agency might resolve the case on “other grounds.” Id.
(quoting Jarkesy, 803 F.3d at 29). For example, if Plaintiffs had raised their constituitonal
claims to the agency in the context of challenging the MVP certificate, FERC might have mooted
them by modifying the pipeline order. Allowing a litigant to instead “make an end run” around
the “statutory review process” with constitutional claims would therefore “run counter to
important principles of judicial restraint.” Jarkesy, 803 F.3d at 24 (quoting Storm, Ruger & Co.
v. Chao, 300 F.3d 867, 876 (D.C. Cir. 2002)). “[C]ourts generally avoid ruling on constitutional
grounds when possible,” but “an exception to an otherwise exclusive scheme for constitutional
challenges in general, or facial attacks on a statute in particular . . . [,] would encourage
respondents in administrative enforcement proceedings to frame their challenges to the
Commission’s actions in those terms.” Id. at 25. District courts would be forced to proceed full
steam ahead and issue nationwide injunctions blocking entire federal regulatory programs
17 because there would be no other way to resolve the claims. See Trump v. Hawaii, 138 S. Ct.
2392, 2425 (2018) (Thomas, J., concurring) (cautioning district courts against issuing nationwide
or “universal” injunctions, particularly “without considering their authority to grant such
sweeping relief”).
Because FERC’s expertise can be “brought to bear” on Plaintiffs’ constitutional claims,
the Court thus sees “no reason to conclude that Congress intended to exempt” the claims from
the statutory scheme. Jarkesy, 803 F.3d at 23 (quoting Elgin, 567 U.S. at 23). The Court’s
finding that the NGA strips it of jurisdiction over Plaintiffs’ claims is thus confirmed.
* * *
When Congress creates an intricate statutory-review process that incorporates agency
consideration and ultimately an avenue to petition an Article III court, we assume it wants that
scheme to control. Id. at 15 (quoting City of Rochester, 603 F.2d at 931). This case is no
exception. The NGA’s review provisions apply in full force to Plaintiffs’ claims, a mandate both
explicit in its text and implicit in the review structure it creates. Indeed, this litigation reveals
some of the foresight behind Congress’s channeling of review to the agency in this way.
Plaintiffs have attempted to bifurcate review between Article I and Article III tribunals and
circumnavigate the statutory scheme to achieve remedies that would apply nationwide. The
Court will decline Plaintiffs’ invitation to upend federal-energy regulation in such dramatic
fashion and dismiss their claims because it lacks jurisdiction to consider them.
IV. Conclusion
For the foregoing reasons, the Court grants Defendants’ Motions to Dismiss. A separate
Order so stating will issue this day.
18 /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: May 6, 2020