One of the longest-running environmental controversies of Joe Biden’s presidency is now over, but it presages much bigger controversies to come.
Last week, the Supreme Court cleared the way for the Mountain Valley Pipeline, a 303-mile natural gas project that will link West Virginia’s booming gas fields to the East Coast’s mainline gas infrastructure. The justices lifted a halt on the project that had been imposed by a lower court. In doing so, they all but guaranteed that the project will get built.
But even if the Mountain Valley Pipeline case is over, the issues and questions at the center of the dispute are not. And they suggest that a profound and unanswered tension sits at the heart of environmental and climate law — one that concerns not only conservation, but the very nature of American democracy as well.
While environmental advocates have fought the pipeline for years, it only became a national issue when Senator Joe Manchin of West Virginia began to champion the pipeline last year. He insisted that the Biden administration back the project in exchange for his support of Biden’s flagship climate and spending bill, which became the Inflation Reduction Act.
After several failed efforts, Manchin finally found a way to help the pipeline this spring, when he got Congress to automatically approve the project as part of the bipartisan deal to raise the debt ceiling. The Fiscal Responsibility Act of 2023 — better known as the debt-ceiling deal — ordered federal agencies to issue every outstanding permit necessary for the pipeline’s construction. It declared that those permits could not be challenged in court.
Furthermore, it said that legal challenges to this accelerated decision could not be heard by the Fourth Circuit, the appeals court with jurisdiction over West Virginia, but only by the D.C. Circuit Court of Appeals. The D.C. Circuit is often described as the country’s second most powerful court; more saliently, fewer of its judges were appointed by Democratic presidents.
And that seemed like the end of the story. But in June, the Sierra Club and other environmentalist groups sued to block the Mountain Valley Pipeline again. They now alleged that Congress had violated a key Constitutional idea — the separation of powers — by rushing to approve the pipeline.
Specifically, they argued that the debt-ceiling deal violated a 151-year-old case called United States v. Klein, or just Klein for short. In that case, which revolved around several hundred cotton bales seized in Mississippi during the Civil War, the Supreme Court ruled that Congress could not pass a law that forced a court to rule on a case in a certain way. In other words, Congress may not pass a law that says: If Smith sues Jones, Smith wins.
The Sierra Club and others argue that Congress violated Klein when it automatically approved the pipeline in the debt-ceiling bill. The pipeline had been mired in permit-related lawsuits in the Fourth Circuit for years; its construction has led to dozens of alleged water-quality violations. So when Congress granted those permit approvals anyway, it was essentially doing an end-run around the appeals court. That was a clear-cut violation of Klein, environmentalists argue.
Is it so simple? In a brief supporting the pipeline, Laborer’s International Union of America argues that Congress acted entirely within its authority. Congress has essentially unlimited authority to authorize agency actions and revise court jurisdiction, the union says.
But here is the rub. To make their case, environmentalists appealed to Chief Justice John Roberts — specifically a dissent he wrote back in 2018.
That year, the Court declined to strike down an Obama-era law that told courts to “promptly dismiss” any lawsuits challenging a tribal casino in Michigan. But the majority could not agree about why, and three conservative justices — led by Roberts — dissented, arguing that the Obama-era law violated Klein because it forced the Court’s hand on a lawsuit, even if the lawsuit in question had not been filed yet.
In their case against the pipeline, the environmentalists urged the Court to adopt the logic of that dissent. And that may reveal something surprising about the tack taken by environmental groups here: Their arguments draw from what has increasingly come to seem like a conservative approach to Constitutional law. And while there are understandable reasons for this, it shows that the environmental movement may be facing a deeper crisis than it realizes. The questions now confronting the climate movement go to the center of questions over American democracy.
Above all: Who gets to rule in the American republic, and who gets to determine what is and isn’t constitutional? This is a live debate, and it goes to the center of contemporary fights over permitting reform. It is worth dwelling on for a moment.
The standard historical line is the Supreme Court, above all, decides what is and isn’t Constitutional — a power that it has claimed for itself since Marbury v. Madison in 1803.
But there is another tradition in American life, which holds that the American people, not the justices, are the final arbiter of constitutionality. President Abraham Lincoln backed this view in the run-up to the Civil War. And so did the men who created the Klein crisis.
Klein did not come out of nowhere. The case emerged during one of the most wrenching moments in our Constitutional history, when radicals and moderates battled over the meaning of the Civil War in the wake of Lincoln’s assassination.
On one side, Radical Republicans in Congress wanted to enshrine equality at the heart of the American republic, protecting the economic and civil freedoms of newly emancipated Black people and harshly punishing their traitorous Southern enslavers. On the other, moderate Republicans and Democrats sought a more reconciliatory approach to Reconstruction, welcoming former Confederate elites back into American life.
This is the background of Klein. When Congress passed the 1870 law that provoked the Klein lawsuit, it sought to prevent ex-Confederates from claiming federal money as compensation for their losses. It wanted to block a man named John Klein from being paid for cotton bales seized from his client during the Civil War, specifically because Congress believed that his client had been part of the rebellion and therefore did not deserve federal funds.
But that was part of a much broader fight between Congress, the White House, and the Supreme Court, in which radical Republican lawmakers sought to assert the people’s — and therefore Congress’s — authority to govern the other branches. Since the people created the Constitution, radicals argued, then the people had final authority over the courts that it made. “It would be a sad day for American institutions and for the sacred cause of Republican Governments if any tribunal in this land, created by the will of the people, was above and superior to the people’s power,” Representative John Bingham, an Ohio radical and the leading author of the Fourteenth Amendment, said.
That theory was revived 60 years later, when President Franklin D. Roosevelt moved to rein in a Supreme Court that kept striking down his New Deal programs. He proposed packing the court with more favorable justices, arguing that the three branches of the Constitution were like a team of three horses pulling a wagon. “It is the American people themselves who are in the driver’s seat,” he said, and therefore the people who should determine the make-up of the Court.
Although Roosevelt’s packing scheme failed, it resulted in one of the Court’s more conservative justices switching to become a more reliably pro-New Deal vote. And since Democrats controlled the Senate for all but four of the following 43 years, the Court lurched in a more liberal direction through much of the 20th century. By the 1990s, the judiciary was the favored branch of establishment liberalism, an august arbiter of civil protections as enacted in Brown v. Board of Education, Loving v. Virginia, and Roe v. Wade.
No longer. Faced with the most conservative Supreme Court in 90 years, progressives have rediscovered this forgotten controversy in the Constitution. Congress, they argue, has the power and duty to regulate the Supreme Court when it strays too far from popular will. The text of the Constitution allows Congress to set exceptions to the Court’s “appellate jurisdiction,” meaning that it could simply prevent the Court from ruling on a given topic, such as abortion or climate change.
Progressives frame this claim in small-d democratic terms, framing the Supreme Court and the electoral college as institutions designed to rob majorities of the ability to govern. “As recent events have made clear, powerful reactionaries are waging a successful war against American democracy using the countermajoritarian institutions of the American political system,” the liberal columnist Jamele Bouie wrote in The New York Times last year. But “the Constitution gives our elected officials the power to restrain a lawless Supreme Court,” he added, even if it might “spark a constitutional crisis over the power and authority of Congress.”
Conservatives have noticed this push. Last week, Justice Samuel Alito argued that Congress has no ability whatsoever to set limits on the Court’s behavior. “I know this is a controversial view, but I’m willing to say it,” Alito told The Wall Street Journal. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Although Alito is speaking in broader terms, his enmity gets at the simmering Constitutional dilemma at the heart of Klein, the precedent that environmentalists are citing to try to block the Mountain Valley Pipeline. When Congress approved the pipeline earlier this year, was it expressing a democratic view that must be respected by the court system (even if climate activists don’t like it)? Or was Congress instead running roughshod over due process and violating the separation of powers?
These are not academic questions. Although Congress intervened to approve a fossil-fuel pipeline this year, it could just as easily intervene to approve clean-energy infrastructure in the future. Across the country, renewable projects and long-distance electricity transmission have been slowed down by environmental lawsuits and permitting fights; even the Sierra Club has recognized the “NIMBY threat to renewable energy.” If lawsuits were to imperil, say, a major offshore wind project, should a Democratic Congress resolve that fight by granting permit approvals by fiat — or should environmentalists reject that intervention, too, as illegitimate? Under the logic of the anti-pipeline lawsuit, granting permit approvals to any stalled energy project — whether fossil or clean — would violate Klein.
These questions matter because there is no near-term political situation in which Congress and the Supreme Court will only do good things for the climate and not bad things. But there is no way to judge them without making a political assessment: Is Congress likely to expedite a renewable project? Given Democrats’ zeal for tackling climate change, such a thing doesn’t seem ludicrous to me. But if environmentalists had won their case against the pipeline, then lawmakers’ hands would be tied in the future: They could not approve a wind farm, solar plant, or nuclear reactor in the same way that they tried to rubber-stamp the MVP. They would have to wait, instead, for the legal process to run its course.
We should be clear, here, that just because the Sierra Club and others pursued a conservative line of argument in this case does not mean that they are themselves reactionary. Their job — unlike that of politicians or pundits — is to win lawsuits. They have to fight on the terrain that politics has given them, and since that terrain tilts to the right today, they are sometimes going to advance right-leaning arguments.
But the broader environmental movement, which emerged in the 1950s and '60s as a cross-partisan, mass democratic campaign, should be careful not to confuse its goals with those of the elite legal movement. The question hangs over climate policy, permitting reform, and the entire challenge of decarbonization: How should climate advocates balance the goals of decarbonization and democracy? What does democracy even mean for the environment, a term that encompasses the water quality of a stream and the carbon intensity of the atmosphere? In the 21st century, how should Americans exert their will to reshape the land, protect the environment, and power their society?
How the Seminoe pumped hydro project would work.rPlus Hydro