Judiciary Used as ‘Bargaining Chip’ in Debt Limit Pipeline Deal

A provision in the debt ceiling deal that strips Sen. Joe Manchin's (D-W.Va.) pipeline project of judicial review comes as Senate Democrats have criticized conservatives for strategically using the judiciary for their political gain.

Conservatives have had great success funneling lawsuits, including ones that challenged abortion pills and protections for LGBTQ people, to the Northern District of Texas where case assignments all but ensure they’ll get heard by sympathetic judges.

It's not unprecedented for Congress to dictate the terms by which courts can review a given statute or even consider it all. Still, legal scholars say the timing of the offer isn't ideal.

"Democrats are using the judiciary essentially as a bargaining chip in this deal," said Jessica Levinson, a Loyola Law School professor. But she said it's not an irrational move.

"It's to avoid economic catastrophe and in some ways you do what you need to do," she said.

Under the House-passed proposal negotiated by President Joe Biden, a Democrat, and House Speaker Kevin McCarthy (R-Calif.) to avoid a US default, federal courts wouldn't be able to review any permits granted for the Mountain Valley Pipeline. The 300-mile natural gas system runs from northwestern West Virginia to southern Virginia.

"This is a one way ratchet," Richard Lazarus, who teaches environmental law at Harvard Law School, said in an email. "No judicial review of a grant, but presumably judicial review of a denial."

Because the text of the proposal is silent on whether courts can review a legal challenge to a permit that's denied, legal scholars say it may still be a possibility.

Any legal challenges to this provision of the debt ceiling deal would have to go before the US Court of Appeals for the D.C. Circuit, a court that's seen as more favorable to the project.

George Washington University Law professor Emily Hammond said the deal directs the Army Corp of Engineers to issue all necessary permits and ignore state environmental laws, which have been at the heart of legal challenges before the Fourth Circuit.

The Richmond-based appeals court has rejected several pivotal permits, most recently in April when it vacated West Virginia's approval of a water quality certification for the pipeline.

In a statement after the court's ruling, Manchin accused the Fourth Circuit of siding with activists "who seem hell-bent on killing any fossil energy that will make our country energy independent and secure."

Hammond said the debt ceiling deal not only disrupts the role of agency expertise in permitting landscapes but also the role of courts in ensuring agencies are following the law.

"Appalachia is the bargaining chip here," they said. "The judiciary is also a casualty in the sense of, really, the provision that eliminates any judicial review of permitting. Making the sole jurisdiction to consider the validity of the bill itself in the D.C. Circuit is a marginal move compared to those first two."

Not all Democrats are on board with the proposal. A spokesperson for Sen. Tim Kaine (D-Va.) said he plans to file an amendment to remove the provision, which his office said bypasses "the normal judicial and administrative review process every other energy project has to go through."

The deal follows a bill Democrats introduced last week to make it harder for litigants to judge shop. It's a legal tactic that involves filing a lawsuit in a specific division of a district court in order to get a preferred judge.

The Fair Courts Act was introduced by Sen. Ron Wyden (D-Ore.) and Rep. Deborah Ross (D-N.C.) after physician groups filed a lawsuit challenging the federal government's authorization of a key abortion drug in Amarillo, Texas where one Trump-appointed judge is assigned 100% of the cases filed there.

Senate Majority Leader Chuck Schumer (D-N.Y.) asked the chief judge of the US District Court of the Northern District of Texas to change how it assigns cases after Judge Matthew Kacsmaryk ordered mifepristone off the market. The Fifth Circuit temporarily kept it on the market but limited its use. The appeals court is deciding whether to uphold Kacsmaryk's ruling.

Congress has the authority to stipulate which courts can hear disputes over certain statutes, so Democrats’ offer to make all legal challenges over the pipeline project go before the D.C. Circuit is not unprecedented.

"Congress has regularly provided in the past that the D.C. Circuit has exclusive jurisdiction over particular issues of administrative law, especially in the environmental law context," Lazarus said. "No doubt politics influences when and when that does not happen, but this is not some major departure from past practice."

The deal, however, is a gift for Manchin. And while it's not clear if Democrats would be willing to relinquish the power of judicial review for anything other than a debt ceiling deal, Hammond worries they might.

"Seeing that we have the precedent set now for this kind of approach, we ought to be on the lookout for it in the future," they said.

To contact the reporter on this story: Lydia Wheeler in Washington at [email protected]

To contact the editors responsible for this story: Seth Stern at [email protected]; John Crawley at [email protected]

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