Appeals court tosses challenge to FERC eminent domain use
- A federal appeals court this week tossed out a major challenge to the Federal Energy Regulatory Commission's use of eminent domain to site interstate natural gas pipelines.
- The 4th U.S. Circuit Court of Appeals on Wednesday ruled that a lower court was correct to dismiss a challenge to FERC's approval of the Mountain Valley pipeline brought by landowners in West Virginia and Virginia who said the project violated their property rights under the Constitution.
- The plaintiffs did not go through the full administrative process at FERC to challenge the pipeline before coming to the court, judges said in dismissing the case, but the court also said actions FERC takes that delay that process — called tolling orders — could in other cases deprive landowners the opportunity for fair judicial review.
The 4th circuit's ruling on Mountain Valley allows FERC to continue its use of eminent domain to seize property necessary to build interstate natural gas pipelines, but it also could provide a path forward for future landowner challenges against the agency.
In the case, plaintiffs argued that they did not have an opportunity to go through the full administrative process at FERC to challenge a pipeline before construction started to impact their properties. FERC routinely issues tolling orders in such cases that give it more time to consider challenges and rehearing requests, but construction typically begins well before that process is complete.
Judges acknowledged that argument in the Mountain Valley case, writing that there is a "possibility that FERC’s use of a tolling order in certain cases may, in effect, deny a plaintiff meaningful judicial review."
However, they wrote, the landowners did not provide enough information on the harm they would suffer from pipeline construction.
"[A]lthough Plaintiffs’ brief makes a few unsupported assertions about injuries they will suffer, they point to no evidence to corroborate their claims and, more critically, make no detailed arguments about those potential injuries."
The acknowledgement by a federal court that tolling orders may be problematic could play into similar cases brewing in other states, like New Jersey or Washington, D.C. A New Jersey court heard oral arguments in its pipeline case this week, E&E News notes.
Changes could also come from FERC's ongoing review of its 1999 policy statement. Comments in that proceeding were due this week and natural gas companies urged regulators to keep the policy largely unchanged.
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