On February 13, 2024, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued an opinion in Bohon v. FERC, affirming its prior holding that the Natural Gas Act (NGA) “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 court explained that because the plaintiffs sued the Federal Energy Regulatory Commission (FERC) in federal district court after FERC’s approval of the certificate to build and operate the Mountain Valley Pipeline, LLC (Mountain Valley) project was appealed to the D.C. Circuit, the district court had no jurisdiction to hear the plaintiffs’ claims.
In the underlying case, Mountain Valley sought and obtained from FERC a certificate to build a 300-mile pipeline running from West Virginia into southern Virginia. Opponents of the pipeline sought rehearing, and when rehearing was denied, the opponents brought a petition for review before the D.C. Circuit, arguing in part that Mountain Valley could not constitutionally use the certificate to take private property for the pipeline through eminent domain. The D.C. Circuit denied the petition for review in 2019.In 2020, the Bohons, who did not seek rehearing or join the petition for review, filed suit in federal district court raising the same constitutional arguments that had been before the D.C. Circuit in the petition for review. The district court dismissed the Bohons’ suit for lack of jurisdiction, reasoning that under § 717r(b) of the NGA, 15 U.S.C. § 717r(b), the case should have been brought directly to the D.C. Circuit or another federal court of appeals. The Bohons appealed to the D.C. Circuit, which affirmed the district court’s ruling. The Bohons then petitioned the Supreme Court for a writ of certiorari, which was granted. The Supreme Court vacated the D.C. Circuit’s judgment and remanded for further consideration, in light of a decision in Axon Enterprise, Inc. v. FTC, 598 U.S. 175 (2023) (Axon). Axon determined that constitutional challenges to federal agencies could be made not only in agency proceedings, but in U.S. courts.
After reviewing the Axon decision and the parties’ briefs after remand, the D.C. Circuit reinstated its prior holding that, under § 717r(b) of the NGA, “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.” The court held that even though the Bohons were not a party to the earlier petition for review of FERC’s order, the district court’s jurisdiction to hear challenges to the certificate ended once the record of FERC’s proceedings was submitted to the D.C. Circuit.
The D.C. Circuit also held that the Axon decision, which includes a three-part test to determine whether a statutory scheme implicitly strips a district court of jurisdiction, did not apply because, unlike the statute at issue in Axon, the NGA explicitly carves away jurisdiction from the district courts.
For more information regarding the D.C. Circuit’s holding, please contact Joseph Koury (koury@wrightlaw.com), Andrew Swers (swers@wrightlaw.com), Ryan Collins (collins@wrightlaw.com), Elizabeth Trinkle (trinkle@wrightlaw.com) or Priyanka Vashisht (vashisht@wrightlaw.com).
