In an article published on September 30, 2019, E&E News considers “4 pipeline fights to watch this term.” The justices have the opportunity to consider:
- The Forest Service’s authority to permit the Atlantic Coast pipeline to cross the Appalachian Trail. “In Atlantic Coast v. Cowpasture River Preservation Association, Dominion Energy Inc. and other Atlantic Coast developers are fighting a 4th U.S. Circuit Court of Appeals decision that the Forest Service cannot authorize a path for the pipeline below the Appalachian Trail. The solicitor general filed a companion brief on behalf of the Forest Service. Environmental groups, meanwhile, have urged the justices not to take the case.”
- Whether developers of the Mountain Valley project can lawfully seize private property before paying. “Givens v. Mountain Valley Pipeline LLC challenges developers’ ability to immediately take private property for constructing the pipeline before providing payment, an approach known as ‘quick take.’ Their petition aims to overturn precedent set by the 2004 4th Circuit case East Tennessee Natural Gas Co. v. Sage, which allowed pipeline developers to begin construction on private property before paying, provided they had a preliminary injunction. The case is different from typical eminent domain disputes because it doesn’t challenge the legality of the practice, but rather when pipeline developers can take and build on the land.”
- A case involving state lands takings for the PennEast pipeline. “Energy lawyers are also closely watching whether a recent decision by the 3rd Circuit on condemning state-owned lands for pipeline development will eventually land in front of the Supreme Court. This month, the court ruled that the developer of the 120-mile PennEast pipeline through Pennsylvania and New Jersey could not use condemnation orders to build significant portions of the line through land owned by the Garden State. The case raises issues of sovereign immunity under the 11th Amendment to the U.S. Constitution and could have important implications for the expansion of pipeline projects in states that oppose oil and gas development. Judges for the 3rd Circuit said that pipeline developers can’t take a state to court for not selling an easement to build a pipeline.”
- Challenges over gas exports because the Federal Energy Regulatory Commission’s authority to delegate eminent domain power to pipeline builders is limited to projects in service of interstate commerce. “The U.S. Court of Appeals for the District of Columbia Circuit recently highlighted the issue in a decision over the use of eminent domain to build the Nexus natural gas pipeline through Ohio and Michigan. Those opposed to the pipeline argued that FERC improperly issued a certificate for the project based in part on commitments made by Canadian shippers. That raises the question of whether it is possible to justify that a project designed to supply energy to citizens of foreign countries will serve the public good. The case not only could affect pipelines that cross into Canada and Mexico, but also could have implications for pipelines feeding liquefied natural gas facilities.”
Read the full article here.