- Investigates causes tending to destroy or impair the free-market system.
- Explores and develops market-based solutions.
The explosion in U.S. shale gas and shale oil has caused an unprecedented building spree of oil and gas pipelines. Our concern is that massive investment in natural gas (and to a lesser extent, crude oil) infrastructure may become the largest impediment to transitioning to zero-carbon. One of the ways to prevent this is by curtailing the ability of pipeline companies to use eminent domain to take property (or interests in property). Because Niskanen has a strong commitment to free market principles and the protection of property rights, it is perfectly situated to lead such legal efforts. In addition, Climate-related litigation has had a major impact on public policy. Currently, the most promising legal avenue is using common law suits in state courts to force fossil fuel companies to compensate property owners and taxpayers for climate-related damages.
Since Niskanen Center first started receiving support a few years ago, our team, which back then primarily consisted of Jerry, Taylor, Joseph Majkut, and Andrew Mills, has grown significantly. We added chief counsel David Bookbinder to spearhead our litigation work and contribute to our education and outreach, and staff attorney Megan Gibson to act as counsel for Niskanen in pipeline litigation and other matters. We hired climate policy analyst Nader Sobhani to contribute to our education and outreach efforts with a focus on environmental economics and clean energy. Finally, we hired Kodiak Hill-Davis to serve as director of government affairs to increase our efforts for developing the educational and advocacy strategy to advance the Center’s legislative goals for climate policy. Together, the team works with wide-range of legislators and coalitions in Washington, D.C. to pursue a pragmatic approach to climate change and to provide an alternative to the proposals of the Green New Deal.
The grant has supported one of the most dynamic litigation shops in Washington, D.C., that is specializing in cutting-edge litigation in two areas: Climate nuisance cases against the fossil fuel industry for climate-related injuries, and fighting pipeline companies’ use of eminent domain to expand America’s fossil fuel infrastructure.
Over the last two years, Niskanen Center has emerged as the leading property-rights advocate throughout the country wherever landowners are fighting eminent domain by pipeline companies. During this and other climate-related litigation, it is extremely important for courts to hear from a pro-market, right-of-center organization that focuses on the property rights issues around pipelines, and not on their environmental impacts.
Niskanen is leading federal litigation efforts against the Federal Energy Regulatory Commission’s (FERC) permitting practices under the Natural Gas Act (which governs interstate gas pipelines), which violate the Fifth Amendment’s Takings and Due Process Clauses. In the states, Niskanen is working to convince courts that oil pipelines (and intrastate gas pipelines) are not a “public use” as contemplated by the Fifth Amendment and almost every state constitution.
Our accomplishments include:
• We represent landowners in a D.C. Circuit constitutional challenge to the use of eminent domain for the Atlantic Coast Pipeline, and submitted our initial brief on April 12. In conjunction with that case, we submitted a FOIA request to FERC for information as to which landowners received constitutionally-sufficient notice to the Atlantic Coast Pipeline’s plan to take their property. FERC refused to provide that information, and we have sued FERC for this information in federal district court in D.C.
• We submitted amicus briefs, at petitioners’ request, on constitutional issues in the D.C. Circuit challenges to FERC’s approvals of the Mountain Valley and PennEast Pipelines. We have also submitted an amicus brief in a separate PennEast case in the Third Circuit, concerning whether the pipeline eminent domain authority in the Natural Gas Act allows for the seizure of state-owned land.
• We represent dozens of landowners in connection with the Pacific Connector pipeline, which would supply the proposed Jordan Cove LNG terminal in Oregon. We will be filing our first lawsuit in connection with this pipeline in May, a FOIA case against FERC for refusing to provide certain information about landowners. We will then be suing FERC in the Ninth Circuit when it approves the pipeline; a victory there on any of the property rights issues would create a Circuit split, which FERC would then presumably take to the Supreme Court. We are also gathering information as to a possible state court suit against the pipeline’s land agents for fraudulent misrepresentations to landowners.
• We are representing Texas landowners and local governments in connection with the Permian Highway Pipeline; the developers claim that the pipeline is not subject to the Natural Gas Act and instead are preparing to seize land under Texas eminent domain law. We will be filing a case in federal district court seeking a declaration that the Permian Highway Pipeline is, in fact, an interstate natural gas pipeline subject to the Natural Gas Act, that the pipeline may not take exercise eminent domain under state law, and that, even if it is an intrastate pipeline, it violates the Fifth Amendment’s “public use” requirement. We have also been consulting with the lawyers who are representing the same landowners in a case filed on April 22 against the pipeline in state court, which argues that the Texas gas pipeline permitting scheme violates the Texas Constitution.
• We submitted the only amicus brief in the Iowa Supreme Court in support of property owners fighting the taking of their land by the Dakota Access pipeline, addressing whether the pipeline was a “public use” as that term was drafted by the Iowa Constitutional Convention of 1857. We are expecting a decision in the next few weeks.
• We will be submitting an amicus brief to the New York State Court of Appeals (the highest court in New York) in connection with the Northern Access pipeline, and a former judge on that court has agreed to represent us.
• We have submitted several other FOIA requests to FERC concerning various of their NGA permitting policies, and will be filing a case in federal district court challenging FERC’s claim that it has no documents related to a policy that it described in detail in a previous federal court proceeding.
• We are continuing our work on getting Congress to amend the Natural Gas Act to eliminate the worst of FERC’s constitutional abuses by building a coalition of property-rights interests to push for this legislation. We have presented two panel briefings (one House and one Senate) for congressional staff, and with the election of the 116th Congress, the Chairman of the House Energy and Commerce Committee has committed to holding hearings on FERC’s eminent domain practices. We are also in discussions with a new Republican member of the House to introduce our proposed legislation amending the eminent domain provisions of the Natural Gas Act.
• On the administrative front, on April 24 we had meetings with FERC Chairman Chatterjee and Commissioner Glick and five landowners whose property has been taken (or is about to be taken) by pipeline companies, so that the landowners could tell their stories directly to these two of the five FERC Commissioners. The two other FERC Commissioners have both agreed to schedule such meetings in June.
PurposeAt Niskanen Center, we are convinced that climate change is real, that it is caused by human activity, and that it poses significant risk. While we acknowledge that global warming can produce a wide range of possible outcomes—from modest to catastrophic—we believe that any reasonable risk management response points toward rapid decarbonization. Accordingly, we educate policy actors about climate science and directly confront climate skeptics while also promoting ambitious, market-oriented policy responses to climate change.
Niskanen is perfectly positioned to engage in this legal work because many libertarians and hardline conservatives have long argued that disputes surrounding pollution are often best handled via common law tort liability than via legislation and regulation (which leaves individual rights and property rights hostage to political considerations regarding the public good).
ScopeNiskanen is now litigating in three cases concerning whether the Federal Energy Regulatory Commission's natural gas pipeline approval process violates the Fifth Amendment’s Due Process and Takings Clauses.
At the state level, Niskanen's efforts center around state-by-state efforts to convince courts that oil pipelines are not a "public use," as required by the Fifth Amendment and almost every state constitution.
Niskanen is co-counsel (with Earthrights International) in the first such case to be brought in a "purple state" (Boulder County et al. v. Suncor et al.), which is also the first case where the impacts beyond sea-level rise, e.g., drought, wildfires, flooding from extreme precipitation, etc., will be front and center.
Information DisseminationWe work to improve public policy both through active engagement in the “war of ideas” and direct engagement in the policymaking process. Much of the “war of ideas” work product is research and analyses that is used in blogging, op-ed writing, self-published policy studies and long-form essays, congressional testimony, public debates, speaking engagements, media appearances, and small-group meetings with key political and policy actors to educate them on policies about which we care.
(Check sent: 12/21/2018)
David Bookbinder interview on CNN. Link to video: https://www.youtube.com/watch?v=C5_gtjKfshw