Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Court of Appeals Upholds Pipeline Condemnation

By Eamon P. Joyce and Cassandra Liu
August 01, 2020

Eminent domain has divided pipeline developers, landowners, environmentalists, and the government in a recent series of high profile cases involving natural gas pipeline projects. For example, the Third Circuit in In re PennEast Pipeline Co., LLC, 938 F.3d 96 (3d Cir. 2019), held that eminent domain cannot be used to acquire state lands. And the D.C. Circuit, animated by concern about the ability for pipeline developers to use eminent domain long before the Federal Energy Regulatory Commission (FERC) and the courts finally resolve challenges to FERC's certificates approving such infrastructure projects, recently overturned 30 years of jurisdiction-related precedents in Allegheny Defense Project, et al. v. FERC, No. 17-1098, 2020 WL 3525547 (D.C. Cir. Jun. 30, 2020) (en banc). The U.S. Supreme Court has signaled its interest in eminent domain by inviting the Solicitor General to address whether certiorari should be granted in PennEast.

This article focuses on a recent decision upholding a pipeline developer's exercise of eminent domain under New York law in National Fuel Gas Supply Corp. v. Schueckler, 2020 N.Y. Slip Op. 03563, 2020 WL 3453939 (June 25, 2020). (Note: The authors represented National Fuel.) The Court held that National Fuel satisfied the New York Eminent Domain Procedure Law (EDPL) section 206(A) because it possessed a FERC certificate of public convenience and necessity. The Court's holding was narrow, strictly focused on EDPL 206(A)'s statutory requirements. Had the Court of Appeals ruled differently, however, it would have threatened the ability of developers to invoke eminent domain under New York law in connection with a broader range of projects wholly unrelated to FERC certificates.

Statutory Framework

To construct, extend, acquire, or operate any facility for interstate transportation or sale of natural gas, the Natural Gas Act requires a company to obtain a "certificate of public convenience and necessity" from FERC. 15 U.S.C. §717f(c)(1)(A). In determining whether to issue such a certificate, FERC considers "all factors bearing on the public interest." Atl. Ref. Co. v. Pub. Serv. Comm'n of N.Y., 360 U.S. 378, 391 (1959). A FERC certificate empowers the holder to acquire the land it needs "by the exercise of the right of eminent domain." 15 U.S.C. §717f(h).

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Removing Restrictive Covenants In New York Image

In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?

The Benefits of Blockchain for e-Discovery and Data Preservation Image

As businesses across various industries increasingly adopt blockchain, it will become a critical source of discoverable electronically stored information. The potential benefits of blockchain for e-discovery and data preservation are substantial, making it an area of growing interest and importance.