37 F.4th 663
D.C. Cir.2022Background
- FERC granted Mountain Valley Pipeline a certificate of public convenience and necessity authorizing construction and delegated eminent-domain power under the Natural Gas Act (NGA).
- Several parties (not the Bohons) sought rehearing and petitioned the D.C. Circuit, which affirmed FERC’s certificate and ended the NGA’s statutorily prescribed review process.
- About a year later, Cletus and Beverly Bohon (landowners on the pipeline route) sued in district court seeking a declaration that Congress’s delegation to FERC is unconstitutional, an order voiding past certificates (including Mountain Valley’s), and an injunction barring future certificates and the exercise of delegated eminent-domain power.
- The NGA provides a special, exclusive review scheme for FERC certificate orders: rehearing at FERC, then a petition for review in a court of appeals, with that court’s jurisdiction becoming exclusive upon filing the record (15 U.S.C. § 717r(b)).
- The district court dismissed the Bohons’ suit for lack of jurisdiction as precluded by the NGA’s exclusive review provision; the D.C. Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NGA’s exclusive review scheme bars district-court facial constitutional challenges to FERC orders | Bohon: Facial nondelegation claims are exempt from the NGA review scheme and thus may be brought in district court | Govt/FERC: The NGA’s review scheme covers challenges to certificates and is the exclusive route for judicial review | Held: Facial framing does not avoid the NGA scheme; exclusivity controls (district court lacks jurisdiction) |
| Whether a structural nondelegation challenge to FERC’s authority falls outside the NGA’s review provision | Bohon: Structural/nondelegation claim is not a challenge to a particular certificate and so is outside the scheme | Govt/FERC: The Bohons’ claim directly targets FERC’s power to issue certificates and seeks to set aside existing certificates, so it fits within the NGA scheme | Held: Claim is anchored to certificate orders and therefore falls within the exclusive appellate review scheme; not removable to district court |
| Whether PennEast requires district-court jurisdiction over nondelegation or similar claims | Bohon: PennEast means district courts retain jurisdiction over nondelegation/related defenses | Govt/FERC: PennEast involved a sovereign-immunity defense collateral to the order and did not disturb the NGA’s exclusivity for collateral attacks on certificates | Held: PennEast is distinguishable; it did not permit collateral attacks that would ‘‘modify or set aside’’ FERC orders—Bohon’s claim would do so and is precluded |
Key Cases Cited
- Bowles v. Russell, 551 U.S. 205 (2007) (Congress decides federal-court jurisdictional bounds)
- Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) (exclusive statutory review schemes preclude other forums for covered claims)
- City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958) (statutory review text creates a complete and exclusive mode of judicial review for licensing orders)
- Jarkesy v. SEC, 803 F.3d 9 (D.C. Cir. 2015) (special statutory review schemes are presumptively exclusive)
- Elgin v. Dep’t of the Treasury, 567 U.S. 1 (2012) (facial constitutional framing does not alone remove a claim from a statutory review scheme)
- NO Gas Pipeline v. FERC, 756 F.3d 764 (D.C. Cir. 2014) (structural-bias claim was too tangential to certificate orders to fall within NGA review; narrow holding)
- Free Enter. Fund v. PCAOB, 561 U.S. 477 (2010) (distinguishing claims not rooted in specific agency actions from challenges to particular agency orders)
- PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021) (sovereign-immunity defense to condemnation was not a collateral attack that would ‘‘modify or set aside’’ FERC’s order; court distinguished such defenses from claims that would invalidate certificates)