NGA Explicitly Strips Jurisdiction, So Decision in Bohon v. FERC Reinstated

On February 13, 2024, the United States Court of Appeals for the District of Columbia Circuit once again rejected a challenge to the Federal Energy Regulatory Commission’s (FERC) decision to award a Certificate of Public Convenience and Necessity (the “FERC certificate”) to Mountain Valley Pipeline, LLC, to build a pipeline transporting natural gas through the Appalachian Mountains. The pipeline, which would begin in West Virginia and end about 300 miles later in southern Virginia, was authorized to use eminent domain to take some private property in the path of the proposed pipeline.

The Mountain Valley Pipeline has spurred intense litigation, including in the D.C. Circuit. In its most recent decision, the D.C. Circuit affirmed the district court’s dismissal of a challenge to the constitutionality of the FERC certificate. Specifically, the court held that “district courts are explicitly stripped of their jurisdiction to review a FERC order once the record in a petition challenging that order is filed in a court of appeals” (Bohon v. FERC, --- F.4th ---, 2024 WL 559495, at *2 (D.C. Cir. Feb. 13, 2024)).

The jurisdiction-stripping action occurred seven years ago. In 2017, shortly after the FERC certificate was awarded, opponents of that decision, including the Sierra Club, sought rehearing from FERC. After that effort failed, the pipeline opponents petitioned for review in the D.C. Circuit, which denied their review. Then in 2020, the Bohons, property owners not part of the original lawsuit, sued FERC and Mountain Valley in federal district court, raising constitutional challenges to the FERC certificate’s authorization of eminent domain. The district court dismissed the Bohons’ suit for lack of jurisdiction, and the D.C. Circuit again affirmed, holding that the Natural Gas Act (NGA) explicitly denied a district court jurisdiction to review a FERC certificate after a federal court of appeals had already considered a petition challenging that FERC certificate.

The Supreme Court granted the Bohons’ petition for certiorari and vacated the D.C. Circuit’s judgment, sending the case back to the D.C. Circuit for further consideration in light of the Supreme Court’s decision in Axon Enterprise, Inc. v. FTC, 598 U.S. 175, 143 (2023). Axon clarified that district courts retained jurisdiction to hear constitutional challenges to agencies’ structures without first going through the administrative review process. The D.C. Circuit ordered the parties to brief the effect of Axon, if any, on this case.

After reviewing the new briefing, the D.C. Circuit again concluded “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” (2024 WL 559495, at *1). Above all, the court keyed in on the NGA’s text: After the record is filed with the court of appeals, “that court’s jurisdiction over the challenged order ‘shall be exclusive’” (Id. at *2 (quoting 15 U.S.C. § 717r(b))). Because that was what happened here, the district court affirmed.

The court also explained why Axon didn’t compel a different result. Despite the “superficial similarities” between the two cases, there was “one unavoidable and critical difference.” The plaintiffs in Axon sued before there was an agency order to challenge, meaning that at that point in the administrative process, the relevant statutes were silent regarding the district court’s jurisdiction. The court explained that Axon comes into play when a statute implicitly strips jurisdiction over a particular claim, but where, as here, Congress has explicitly defined jurisdiction, that text controls. So, in this case, the statute explicitly stripped jurisdiction, and the court reinstated its previous judgment affirming the district court’s decision to dismiss the Bohons’ suit.

We will continue to monitor this case for further developments.