Pipelines

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A great result for colleague Carolyn Elefant, who represents property owners in a case and issue we’ve been following. 

This is one of those Natural Gas Act pipeline cases. Not on the issue of immediate-possession-by-injunction (we’ll have the latest development in that chapter very soon), but on the administrative law side, involving FERC’s approval of a certificate of public convenience. That, as you know, is the trigger to a private pipeline exercising the NGA’s delegated power of eminent domain, because it effectively settles the question of whether the takings are for a public use or purpose. Also, as you know, an agency’s decision is, generally speaking, subject to a highly deferential judicial standard of review under the APA: a certificate may only be set aside “if it is arbitrary and capricious or otherwise contrary to law.” Slip op. at 9.  

Thus, the property owners had a daunting…

Continue Reading Whose House? Our House. D.C. Circuit: Pipeline Taking For Partial Export May Not Be A Public Use (For US Public)

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You overwhelmingly asked for Nashville, and we’re bringing it to you!

Get ready, and hold your place now: here’s the list of programs and speakers for the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, to be held at the Downtown Nashville Hilton, January 23,- 25, 2020. Two-and-a-half days with top-notch national faculty (lawyers from both sides, judges, legal scholars, appraisers, relocation experts, and others).  

Early registration and group rates are available now. 

Here are just some of the programs:

  • Featured Presentation: Property Rights as Civil Rights: Seeking Justice Though the Fourth and Fifth Amendments. Hon. Jonathan Apgar, Jamila Johnson, Alan Ackerman. Moderator: Leslie Fields.
  • Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do? David Breemer, Smitha Chintamaneni, Professor Bethany Berger. Moderator: Professor Steven Eagle.
  • When A River Runs Thought It: Water Rights and

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Continue Reading Here’s The Agenda And Faculty For The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan 23-25, 2020

Here’s the Brief in Opposition in a case (and issue) we’ve been tracking for a while (including filing several amicus briefs along the way, including this one). The BIO is the pipeline’s response to the cert petition on the question of whether  

Brief in Opposition to Petition for Writ of Certiorari, Givens v. Mountain Valley Pipeline, LLC, No. 19-54…

Continue Reading BIO In Pipeline Quick-Take-By-Injunction Case: The Injunction Is Correct, And It Is Too Late To Do Anything About It Because We’re Already Building

ALI Nashville 2020

The final agenda and faculty list will soon be officially published, but we wanted to give you a preview of what is in store at the ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 23-25, 2020, at the Nashville Hilton (downtown, just a few steps away from everything that Nashville has to offer). 

Don’t miss out: in recent years, we’ve been at-or-near capacity, and the conference hotel has even sold out a couple of times. Visit the ALI-CLE website to register and hold your space. 

Here are some of the things we’ll be discussing: 

  • Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do?
  • The Missing Link in Valuing Fixtures
  • When a River Runs Through it: Water Rights and Takings
  • Responding to Project Changes: Valuation When Government Action is Ongoing
  • Property Rights as Civil Rights: Seeking Justice Through

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Continue Reading Get Ready: The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference Agenda Coming Soon

Here’s what we are reading this Tuesday:

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Continue Reading Tuesday Takings Round-Up: Alien Takings; Zombies; Kelo, Philippines-Style; Kafka

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We’re about to get underway with the fall semester at William and Mary Law School, where we’re again teaching an upper-division course, Eminent Domain and Property Rights. 

We’ve more than doubled the size of last year’s enrollment, so it looks like the word is getting out. We cover not only eminent domain and just compensation, but takings (yes, we have a lot of new materials to cover there), civil forfeiture, a small bit of crossover with land use, local government, and related, property rights as civil rights, how property law is discussed in the public sphere, due process, and how to lawyer up these cases. And in early October, the opportunity to have some of the nation’s best property law scholars “guest lecture” during the Brigham-Kanner Property Rights Conference. Here’s the official description:

Property rights and the sovereign’s power of eminent domain have been essential components of…

Continue Reading Law 608: Eminent Domain And Property Rights – Season 2

Here’s the amici brief we’re filing today on behalf of the Owners’ Counsel of America, New Jersey property owners subject to natural gas pipeline takings, the Institute for Justice, and the Cato Institute, in support of a cert petition which is challenging the federal courts of appeals which have upheld giving prejudgment possession of property to a private pipeline condemnor once a district has ruled in favor of the pipeline that it qualifies under the three predicates in the Natural Gas Act, 15 U.S.C. § 717f(h). . 

The issue is one we’ve covered before (in our amicus in support of an earlier petition on the same issue), but there are some new twists which make this case especially ripe for SCOTUS review. 

First, this isn’t some isolated problem, but of nationwide concern. This is at least the third cert petition recently on this subject. The problem isn’t going away.…

Continue Reading New SCOTUS Amici Brief (OCA, NJ Prop Owners, IJ, Cato): Quick-Take-By-Injunction Scheme Shows Complete Lack Of Respect For The Law

You remember Samuel Beckett’s classic absurdist play, Waiting for Godot. Two guys spend the entire time waiting for another guy (you know who) to show up, but he never does. There are nearly endless interpretations of its meaning (if any), but everyone pretty much agrees that it is at least about the nature of life and its existential meaningless, while both characters and the audience all wait for something that we know will never happen. 

The U.S. Court of Appeals’ recent decision in Allegheny Defense Project v FERC, No. 17-1098 (Aug. 2, 2019), might instead be called Waiting for FERC, because when you read through it (especially the concurring opinion by Judge Millett, which contains some very tart language (to what some have speculated is her own per curiam opinion)), you get the sense that the challengers to the pipeline are a lot like Vladimir and…

Continue Reading Waiting For FERC: DC Circuit OK’s Pipeline Approval, Over Salty Concurring Opinion

Recently, we requested crowdsourcing of this year’s “come to the ALI-CLE Eminent Domain Conference video.” Instead of doing the video ourselves, we asked folks to “please send a short clip of you and/or your colleagues telling us why you think the Eminent Domain and Land Valuation Litigation Conference is the place to be in January. Humor welcome, but not required.”

Our friend and colleague, St. Louis’ Paul Henry, has answered the call, admirably. Paul, as you may remember, is famous for his presentation a couple of years ago at the Conference about “Everything About Eminent Domain I Need To Know I Learned From Star Trek.” Which he gave in a Starfleet captain’s uniform. Brave man. Readers know that we dig Star Trek. But we are not that brave, so bravo, Paul.  

See if you don’t agree that Paul has now raised the video bar. …

Continue Reading Capt Henry Orders You To Boldly Go To The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan. 23-25, 2020