Project Report:
Major statutory and constitutional claims against natural gas pipelines
Purpose
- Investigates the causes of economic imbalances.
- Investigates causes tending to destroy or impair the free-market system.

Summary

Pipeline companies are taking property from landowners by using eminent domain authority granted by either state law for intrastate pipelines or the federal Natural Gas Act (NGA) for interstate ones. Our goal is to identify and litigate three key cases where favorable decisions could then be used as the basis of challenging pipelines across the country: one case to establish that pipelines supplying LNG export facilities (or carrying gas to the U.S. borders) do not have eminent domain authority, one to challenge a variety of FERC's unconstitutional practices in administering the NGA; and one to curtail the industry practice of dubbing pipelines "intrastate" in order to avoid the far slower and more rigorous NGA review and permitting scheme in favor of a "check the box" state process. We would pick three cases from a universe of approximately 50 major natural gas pipelines we've identified that have been announced or are still in the permitting process.

Purpose

A victory on the public use and/or Due Process claims we are litigating, or a decision holding that a pipeline is an interstate not intrastate pipeline, would not only stop such a pipeline, but have huge ramifications for every intrastate pipeline in selected state.

We have drafted model legislation to amend the NGA that would eliminate the worst of the problems. We launched an advocacy campaign aimed at educating Members on Capitol Hill regarding the principled issues in play that should compel those that care about property rights to support reforming the NGA, and in the course of that have presented two panel briefings (one House and one Senate) for Hill staff.

We're looking to remedy some problems by asking FERC to change its eminent domain regulatory regime.

Scope

We'll choose one pipeline that delivers to an LNG export facility (or U.S. borders) and argue that such pipelines do not have the right of eminent domain. Our goal is to bring a new case in the 5th Circuit, the best forum for disrupting the frenzy of new LNG export facilities being built on the Gulf Coast (as well as export pipelines to Mexico).

There are a surprising number of FERC's unconstitutional practices under the NGA. Several abuses have not yet been challenged. We would identify an interstate pipeline with the best examples of these practices that could be brought in a Circuit where we’d be most likely to succeed on those claims.

As flawed as FERC's system is, there is at least widespread public notice of the proposed pipeline. Forcing intrastate pipelines to go through FERC's process takes at least 2-3 years, which gives project opponents time to organize on the ground and creates multiple opportunities to litigate the many other required federal and state permits.


Address
820 1st Street NE, Suite 675
Washington, DC 20002


Phone
(202) 899-1161


Posted 10/31/2019 4:15 PM
Updated   4/8/2020 1:26 PM

  • Nonprofit


 
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