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There’s a bit of Inception-level dream-within-a-dream stuff in the U.S. Court of Appeals for the Third Circuit’s opinion in Tennessee Gas Pipeline Co. LLC v. Permanent Easement for 7.053 Acres, No. 17-3700 (July 23, 2019), because the court held in takings by a private condemnor exercising the delegated power of eminent domain under the federal Natural Gas Act, the governing rules about just compensation are provided by federal common law. But “[b]ecause federal law does not supply a rule of decision on this precise issue, we must fill the void with a common law remedy. In doing so, we opt to incorporate state law as the federal standard.” Slip op. at 3.  

So the applicable federal common law of just compensation incorporates state law. Got it. 

Here, the fight was over “consequential damages” which the property owner incurred as a result of the pipeline taking, such as professional fees…

Continue Reading In Federal Natural Gas Act Takings By Private Condemnors, Just Compensation Is Determined By State Law (Incorporated Into Federal Common Law)

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I am grateful that planning chairs Justin Hodge and Jeremy Baker invited me to their conference. A room full of experts. Here are the links to the cases and other items I spoke about:

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Continue Reading Cases And Links From Today’s Eminent Domain And Pipelines Conference (Houston)

Back to Knick for a bit. Our colleague Dwight Merriam has penned a response to a recent op-ed by U.S. Senator Sheldon Whitehouse (D – RI).

The good senator, if you weren’t aware, was also the guy who argued and lost the Palazzolo case all the way back in 2001. Apparently, he’s still sore about that, because in response to Knick, he wrote, “‘Knick’-Picking: Why a Recent Supreme Court Ruling Signals a New Day,” in which he argued that the decision “is a gift for big-money developers and regulated industries.” (Neither Ms. Knick nor Mr. Palazzolo is or were a big-money developer or a regulated industry, in case you were wondering.)

Merriam doesn’t see it the same way as the august senator. In “Senator is Wrong About ‘Knick’ Ruling,” he sets the record straight (originally published at law.com). 

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Senator Whitehouse…

Continue Reading Guest Post: Senator Is Wrong About Knick Ruling

Here’s the latest cert petition about an issue we’ve been following closely. Givens v. Mountain Valley Pipeline, LLC, No. ___ (July 3, 2019)

As regular readers understand, several federal courts of appeals recently 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 15 U.S.C. § 717f(h).

These courts conclude that summary judgment — which recognizes that a private pipeline company with a FERC certificate may exercise eminent domain power under the NGA — is enough to also grant the pipeline possession of the land now, even though the NGA does not delegate the quick take power. In our view, these injunctions grant pipelines a substantive right and are an usurpation of Congress’ power to determine how the delegated eminent domain power gets exercises. The courts, however (with …

Continue Reading New Cert Petition: Private Pipeline’s Preliminary Injunction In Natural Gas Act Taking Created New Substantive Rights

Here’s the recording of last week’s Federalist Society teleforum on the issue “Is ‘Possess Now, Pay Later’ Constitutional in Private Pipeline Takings?” 
 
Stream it or download it here:
 

Here’s the summary of the podcast:

The U.S. Supreme Court will soon consider the third of several petitions for certiorari asking it to review a question which has split the lower federal courts: whether district courts have the power under the Federal Rules of Civil Procedure to issue preliminary injunctions in takings under the Natural Gas Act which allow private pipeline condemnors to obtain immediate possession of property, even though Congress has withheld the federal “quick take” power in the NGA.

The Third, Fourth, Ninth, and Eleventh Circuits have concluded that simply because Congress did not delegate to private pipeline condemnors the quick take authority—the power to obtain immediate title and possession of condemned property upon a deposit…

Continue Reading Podcast Now Available: Is “Possess Now, Pay Later” Constitutional in Private Pipeline Takings?

Here’s a case that’s pending in the New York Court of Appeals that has been briefed and is awaiting argument. 

In Natural Fuel Gas Supply Corp. v. Schueckler, No. 17-02021 (Nov. 9, 2018), the Appellate Division answered this question:

This appeal therefore presents a novel question of condemnation law: can a corporation involuntarily expropriate privately-owned land when the underlying public project cannot be lawfully constructed?

Slip op. at 1. 

The court stated it clearly: “We answer that question firmly in the negative.”

Like many projects, in order to be built this natural gas pipeline had a long and complex checklist. It needed approvals of FERC — a certificate of public convenience — under the Natural Gas Act. And certain approvals under the federal Clean Water Act. Which in turn meant it needed state enviro checkoffs, here a water quality certificate from a New York agency. It also needed to…

Continue Reading NY Court of Appeals Considering Whether A Pipeline Can Take Property For A Project That Can’t Legally Be Built

The details are yet to be posted on the web, but mark your calendars now for an upcoming (two weeks from today, on Friday, June 21, 2019) Federalist Society teleforum, produced by the Environmental and Property Rights Practice Group, about an issue that we’ve been following that is the subject of at least three recent cert petitions (two denied, one on the way): whether federal courts can issue preliminary injunctions in takings under the Natural Gas Act which allow private pipeline condemnors to obtain immediate possession of property, even though Congress has withheld the federal quick take power in the NGA.

Stay tuned for the details which will be posted soon. Our speakers will be Chris Johns (Texas) who is preparing the forthcoming petition, and Jeffrey Simmons (Wisconsin), who will present the condemnors’ viewpoint.  We’ll be moderating the program. 

Details on the way. Continue Reading Mark Your Calendars: Federalist Society Teleforum On Preliminary Injunctions In Natural Gas Act Takings: Is “Take Now, Pay Later” Unconstitutional? (Friday, June 21, 2019)

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Here are the links to the cases which were not in your materials. Theme of the day: amateurs! 

Our thanks to colleagues Jill Gelineau and Paul Sundermier for asking us to present. It was good to see our Oregon friends again. 

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Continue Reading Links From Today’s Portland Eminent Domain Conference

Here’s one we’ve been waiting to drop for a while, on an issue we wrote about earlier this week.

In Puntenney v. Iowa Utilities Board, No. 17-0423 (May 31, 2019), the Iowa Supreme Court — taking a different view than Kentucky — held that a pipeline which runs through Iowa, but which does not have any “offramps” for oil in Iowa, will nonetheless promote the public convenience and necessity” for the people of Iowa.

The court’s reasoning boils down to this: a pipeline is a “traditional” public use.

The court first adopted Justice O’Connor’s Kelo dissent (along with the reasoning of Hathcock, Norwood, and SWIDA), concluding that economic development alone does not qualify as a public use under the Iowa Constitution:

Like our colleagues in Illinois, Michigan, Ohio, and Oklahoma, we find that Justice O’Connor’s dissent provides a more sound interpretation of the public-use requirement. If…

Continue Reading We Are The World: Iowa SCT Finds Dakota Access Pipeline Will Promote The Public Convenience For Iowa, Even If Iowans Don’t Get Any Of The Pipeline’s Oil

An issue we’ve been tracking for a while — are takings for pipelines for the public’s benefit? — raises another question: how is “the public” defined?

Some courts, like Kentucky’s, define the public as the public which the jurisdiction serves. In the Bluegrass Pipeline case, for example, the court of appeals held that a natural gas pipeline which went through Kentucky, but did not have any offramps for the natural gas in Kentucky — was not “in public service” as required by that state’s eminent domain statutes. A Pennsylvania court adopted a similar rationale (even though it held a private pipeline could exercise eminent domain power because it planned gas offramps in Pennsylvania).

And in City of Oberlin v. FERC, No. 18-1248, the U.S. Court of Appeals for the D.C. Circuit recently heard oral arguments about whether FERC can consider…

Continue Reading Are Pipelines For The Public’s Benefit? If So, What Public?