A federal appeals court Thursday (July 26) upheld the Federal Energy Regulatory Commission in a landowner challenge to the commission’s approval of the siting of a natural gas pipeline in West Virginia and Virginia. The decision came as FERC is in the midst of reevaluating its pipeline citing policy.
A three-judge panel of the 4th Circuit Court of Appeals, based in Richmond, Va., upheld FERC’s grant of federal eminent domain for the Mountain Valley Pipeline, a 303-mile pipe from northern West Virginia south to southern Virginia. The $3.5 billion project is owned by natural gas producer EQT Corp., NextEra Energy, Consolidated Edison, Alta Gas, and RGC Resources. The project has been under fire from local landowners and the Sierra Club.
The appeals court upheld a circuit court decision that ratified FERC’s grant of eminent domain, saying that the landowners opposed to the project had full opportunity to litigate the issue at FERC and lost.
Steve Weiler, a partner at the international law firm Dorsey & Whitney, said the court found that FERC’s approval of the project adhered to its gas pipeline certification policy. The law firm did not represent any of the parties in the case.
“Under the policy statement,” Weiler said, “FERC balances the public benefits of the pipeline project (e.g., access to reliable natural gas service, reduced costs, etc.) against the potential adverse consequences on three interests — existing customers, existing pipelines, and landowners or communities impacted by the route — and whether the pipeline has made efforts to eliminate or minimize any adverse effects. Indeed, to ensure that landowners’ interests are identified and that they landowner concerns can be voiced in an appropriate forum, FERC requires pipelines to engage in landowner outreach and conduct open houses to discuss the pipeline project and accept comments.”
Weiler said, “Essentially, the Fourth Circuit is saying that FERC provided the landowners with an opportunity to address their concerns – during the [Natural Gas Act] Section 7(c) certificate process. And, if landowners didn’t believe that the certificate authorization should have been issued, the NGA also provided them with procedural opportunities for additional relief – i.e., asking FERC to reconsider the decision and, if that’s unsuccessful, to seek judicial review from a court of appeals. Bottom line, the court determined that the landowners (no matter how valid their concerns) could not do an end-run-around the NGA by bringing their claims in a district court in the first instance.”
As the appeals court was upholding FERC’s approval of the project, Pittsburgh-based EQT announced a delay in completion of the project from the end of this year until the first quarter of 2019, due to the appeals court’s stay on some stream crossings in West Virginia pending the outcome of the appeals court ruling.
On Wednesday, the Interstate Natural Gas Association of America, the Washington lobbying group for the gas pipelines, filed comments with FERC on the pipeline policy review. INGAA supported the existing policy statement on pipeline certification. In a 108-page filing, the pipeline lobby said that FERC’s 1999 pipeline policy statement still provides a “durable framework” for reviewing pipeline applications for FERC approval and federal eminent domain authority. Under the current policy, said INGAA, the nation has been able to develop the infrastructure needed to move massive new discoveries of natural gas to consumer markets.
“The fundamental architecture of the Certificate Policy Statement is consistent with the [Natural Gas Act] and remains sound,” INGAA said. The lobby warned FERC “to avoid making wholesale policy changes that may prove problematic and ultimately harm domestic customers.”
— Kennedy Maize