- Investigates the causes of economic imbalances.
- Investigates causes tending to destroy or impair the free-market system.
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.
Gas pipeline under construction. Credit https://creativecommons.org/licenses/by-sa/2.0>, via Wikimedia Commons
ACP. We are taking on a big new issue in the Atlantic Coast Pipeline (ACP) saga. ACP cancelled the project in July, but that is not the end of the matter. Because ACP has obtained hundreds of parcels of private land and done considerable work both on those and on public lands (everything from tree-cutting to trench-digging to actually installing pipeline segments) it must now get FERC approval for its “Abandonment Plan”.
PennEast. While we wait for the Supreme Court to tell us whether it will review the 3rd Circuit decision holding that the Natural Gas Act does not grant federal courts jurisdiction to condemn state-owned property (and which thus effectively killed the New Jersey part of the pipeline), PennEast asked FERC to amend its Certificate to allow it to build the Pennsylvania portion as a stand-alone project.
We commented that there are plenty of substantive reasons why the amendment makes no sense, and also noted that, procedurally, the Natural Gas Act does not allow the agency to amend Certificates that are being challenged in court. FERC put the Amendment on last week’s Commission meeting agenda, but then pulled it, with Commissioner Chatterjee explaining that, “commenters in this proceeding have raised concerns that action on this amendment would run afoul of the Natural Gas Act's prohibition on modifying or setting aside orders that are currently before the court.” So it’s off the table, and we expect the new FERC Chair, Richard Glick, to keep it that way. (He dissented from the original Certificate approval, expressing, among other things, strong concern about the use of eminent domain.)
Jordan Cove. We filed our opening brief in the D.C. Circuit last week, and briefing should be finished by April 15, with argument sometime before the end of the year.
There was even some good Jordan Cove news out of FERC. Last year, Oregon denied the required Clean Water Act section 401 certification for the project, but Jordan Cove asked FERC to declare that Oregon had waived its right to deny certification. On January, 19 FERC turned them down, making it even more unlikely that the project will ever be built.
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.
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.
As flawed as FERC's system is, there is at least widespread public notice of the proposed pipeline.
(Check sent: 7/8/2020)