Landowners ask Supreme Court to curb pipeline eminent domain

Source: By Niina H. Farah, E&E News • Posted: Monday, September 26, 2022

The U.S. Supreme Court, as photographed Sept. 2, 2021.

The U.S. Supreme Court, as photographed Sept. 2, 2021. Francis Chung/E&E News

Months after the Supreme Court ruled against EPA’s authority to craft broad power plant regulations, landowners are asking the justices to place similar limits on pipeline developers’ ability to acquire private property for their projects.

Cletus and Beverly Bohon, along with others living in the path of the Mountain Valley pipeline, filed a petition on Sept. 15 asking the justices to weigh in on a narrow question with broad repercussions for the landowners’ bid to block the Federal Energy Regulatory Commission from delegating eminent domain power to companies that build natural gas infrastructure.

Mia Yugo, a private attorney representing the landowners, said in a statement that her clients would like to see the courts ultimately curtail FERC’s authority, as the justices have done in recent rulings against federal climate rules and vaccine mandates.

“We cannot say, in the one instance, that the EPA has too much power and Congress needs to be more specific before the EPA can wield that power,” she said, “but then, in the same breath, look at FERC and say, ‘Well, we really need pipelines, so we’ll just let FERC run wild with little to no guidance from Congress, as it has done for decades.’”

The Bohons are opposing the ability of developers of the 300-mile Mountain Valley natural gas pipeline to condemn nearly 3 acres of their southwestern Virginia land. The property is home to springs, vegetable gardens and “Miss Magnificent,” a weeping cherry tree planted as a memorial to Cletus’ father, according to a court filing.

Rather than challenge the FERC certificate authorizing construction of Mountain Valley, as other pipeline opponents have done, the Bohons sought to tackle the very source of the commission’s authority to allow companies to condemn land in the path of an approved project.

They have argued that a Natural Gas Act provision allowing FERC to delegate its eminent domain authority to certified project developers is unconstitutional.

But the claim has so far failed to gain traction, as lower benches have ruled that the landowners should have filed their lawsuit not in federal district court, but in the U.S. Court of Appeals for the District of Columbia Circuit, which has jurisdiction in FERC certificate challenges (Energywire, June 22).

The Supreme Court petition, Bohon v. FERC, asks the justices to resolve the jurisdictional question and allow the landowners’ challenge to proceed.

It takes the vote of four justices to grant a petition. The Supreme Court only accepts about 1 percent of petitions that come its way.

Yugo has compared the Bohons’ challenge to the Supreme Court’s June 30 ruling in West Virginia v. EPA, which found that the agency had exceeded its Clean Air Act authority in 2015 when it finalized the Clean Power Plan, a systemwide regulation to curb greenhouse gases from one of the nation’s leading sources of emissions.

She has also cited the court’s January decision to block the Occupational Safety and Health Administration’s mandate that private employers with 100 or more workers must require either Covid-19 vaccination or regular testing and masking. The justices found the OSHA rule had exceeded the agency’s authority to regulate workplace hazards.

In both the OSHA and EPA cases, the Supreme Court found that Congress must speak clearly when it wants federal agencies to address issues of vast economic and political significance. Yugo argues that the same rationale must apply to FERC’s power to allow pipeline companies to take private land.

FERC declined to comment on the Supreme Court petition. The commission’s response to the Bohon petition is due to the Supreme Court by Oct. 19.

Landowner rights

FERC and Mountain Valley have defended themselves against the Bohons’ challenge in the lower courts.

In a joint filing in October 2021 in the D.C. Circuit, the commission and pipeline company noted that since the Bohons had filed their lawsuit, FERC had implemented Order 871, which established new protections for landowners.

Under the order, FERC “presumptively” put certificate orders — and project construction — on hold during the period of time when property owners can raise concerns about the approval and request a rehearing from the commission. Prior to the order, construction could proceed, even in light of a pending landowner dispute.

“These reforms further advance landowners’ ability to seek timely judicial review of Commission certificate orders,” FERC told the D.C. Circuit at the time.

Natalie Cox, spokesperson for the Mountain Valley pipeline, said that the issue raised in the Bohon petition is “substantially similar” to arguments the landowners already raised and that the company had “already addressed and prevailed.”

The $6.6 billion pipeline, which is still under construction and has been delayed by multiple lawsuits, is designed to carry natural gas from the Marcellus Shale formation in West Virginia down through Virginia. An extension to the project would deliver gas to customers in North Carolina.

Cox said in an email: “Mountain Valley is hopeful that a decision in the current litigation will bring finality to the procedural issues raised.”

Yugo said it is absurd to require parties challenging the constitutionality of FERC’s actions to submit their complaints to the commission before they can challenge the agency in court.

Not only that, she said, FERC has held it does not have jurisdiction to determine the constitutionality of the authority delegated to the commission by Congress.

Yugo also drew parallels between the Bohon petition and jurisdictional precedent set in the 2021 Supreme Court case PennEast v. New Jersey.

In that case, PennEast Pipeline Co., the developer of a 116-mile pipeline from Pennsylvania to New Jersey, had asked the justices to reverse a lower court order that blocked the company from condemning land held by the Garden State. The Supreme Court eventually ruled in PennEast’s favor, but the pipeline was canceled soon after the decision.

Even though New Jersey lost the case, the Supreme Court did find that state officials could bring their eminent domain challenge directly to federal district court, rather than to the D.C. Circuit.

As in PennEast, Yugo said, the Bohons’ challenge is not a “collateral attack” on a FERC order requiring a D.C. Circuit hearing.

“Accordingly, under PennEast, district court is the only forum in which Petitioners could file their challenge,” Yugo wrote in the Bohon petition.

But FERC and Mountain Valley countered that the Supreme Court’s findings in PennEast instead bolstered the commission’s position that the suit was a challenge to a pipeline certificate and therefore belonged in the D.C. Circuit.

“There is no support for the Bohons’ contrary reading of PennEast,” FERC and the pipeline company said in their joint October 2021 D.C. Circuit brief.

The justices will decide in the coming months whether to accept or reject the Bohons’ plea.

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