Richmond’s 4th Circuit Court of Appeals Needs Better Judgment

The 4th U.S. Circuit Court of Appeals in Richmond, Va. Acroterion/Wikipedia

by James C. Sherlock

Federal judges are supposed to call balls and strikes in relation to the Constitution and the law.

President Biden signed the Fiscal Responsibility Act into law on June 3.  Sec 324 of that law, Expediting Completion Of The Mountain Valley Pipeline,

  1. blocked any court from hearing cases about permits for the pipeline; and
  2. gave to the D.C. Circuit Court of Appeals jurisdiction over any other cases about that pipeline or about the law itself.

Judging federal agency decision cases is a traditional role for the D.C. Circuit Court of Appeals.

The 4th U.S. Circuit in Richmond, soon after the law was signed in Mountain Valley Pipeline, Llc V. Wilderness Society, Et Al. violated both key Sec. 324 provisions.

The Fourth Circuit had for years assumed for itself the role of federal and state regulator for pipelines in Virginia and wasn’t going to surrender that authority.

Having already multiple times rejected permits granted to the Mountain Valley and Atlantic Coast pipelines by the U.S. Fish and Wildlife Service and Corps of Engineers, among other federal and state agencies, it decided on July 10th and 11th to block construction once again while it reviewed challenges to yet more permits.

The Supreme Court overturned the decision very quickly and unanimously.

That was not an anomaly. The Conservative-Liberal split on the Supreme Court is 6-3.  Supreme Court rejections of 4th Circuit actions unanimously, 8-1 or 7-2, are becoming all too common.

Having Virginia federal court decisions at the mercy of that Circuit means that plaintiffs and defendants from Virginia and other 4th Circuit states are at risk, at least for delays, in receiving justice.

Congress has reset the federal judiciary system before. See as example the Federal Courts Improvement Act of 1982.

The July decisions by the 4th Circuit, which multiple times previously had rejected the executive branch’s permitting judgments, in doing so accepted a plea from environmental groups that the new law passed by Congress and signed by the President was unconstitutional.

From the 4th Circuit’s Judge James Wynn Jr.

Where’s the limit on that?

Congress can intervene on any type of case we have and take away jurisdiction and that’s the end of it?

Answer: not in “any” type of case, Judge, but a unanimous Supreme Court said it could in this one.

Supreme Court supermajority reversals of the Fourth Circuit

2022-2023 term
Dupree v. Younger. Unanimously vacated and remanded
Mountain Valley Pipeline, Llc V. Wilderness Society, Et Al. reversed unanimously

2021-22 term
Berger v. North Carolina State Conference of the NAACP – reversed 8-1
Siegel v. Fitzgerald – reversed 9-0

2020-21 Term
BP P.L.C. v. Mayor and City Council of Baltimore vacated and remanded 7-1
United States v. Gary reversed 8-1

2019-20 term
United States Forest Service v. Cowpasture River Preservation Association reversed and remanded 7-2

Those overwhelming rejections do not represent differences in political opinions, but rather differences in jurisprudence.

The 4th Circuit appears too often to get the theory of law, and of their jobs, wrong.