A lawsuit was filed September 5 in the Federal District Court for the District of Columbia challenging the constitutionality of the granting of eminent domain powers by the Federal Energy Regulatory Commission (FERC) to interstate natural gas pipelines. The plaintiffs are Bold Alliance, Friends of Nelson and 57 landowners who would be affected by the Atlantic Coast Pipeline (ACP) or the Mountain Valley Pipeline (MVP).
The Natural Gas Act, the federal law governing the awarding by FERC of “certificates of public convenience” to build interstate natural gas pipelines, grants the right of a company receiving such a certificate to acquire property for the project through the exercise of eminent domain power if an agreement has not been reached with a landowner. The Bold Alliance, et.al. lawsuit states that the “constitutionality of the eminent domain provisions hinges on whether a certificate issued by FERC serves a public use. By its own admission, however, FERC does not
consider a determination of ‘public use’ to be a necessary part of a grant of a certificate.”
The lawsuit further points out that “Congress did not delegate the power of eminent domain to private entities that have failed to obtain the necessary state and federal approvals for the construction of natural-gas pipelines.” Both the ACP and MVP lack numerous required permits that are not expected to be granted, if at all, until after the targeted date by FERC for acting on the certificate applications of either pipeline. Consequently, the plaintiffs seek a declaratory judgment that “certificate holders do not possess the power of eminent domain if their certificates are conditioned on the receipt of federal or state approvals.” Granting such conditional approvals is a common practice of FERC.
An additional 18 grounds for declaratory judgment are cited by the lawsuit, including:
- A certificate whose primary purpose would be to benefit foreign commerce violates the “takings clause” of the 5th Amendment to the Constitution;
- The delegation of eminent domain authority by FERC conditioned on subsequent approvals violates the separation of powers principles of the Constitution; and
- FERC’s refusal to provide impacted landowners access to privileged information filings by an applicant pipeline company violates the landowners’ due process rights.