Nearly a year ago, the firm reported a big victory in City of Oberlin v. FERC where the D.C.Circuit ruled that the Commission’s reliance on exports to support a finding of need for an interstate gas pipeline raised statutory and constitutional concerns. The court remanded the case to FERC for further explanation and…radio silence. Today, the firm filed this Rule 28(j) letter asking the Court to direct FERC to act consistent with the spirit of Allegheny Defense Project v. FERC .
Last month, on behalf of the City of Oberlin, Ohio I argued a boundary-pushing case at the D.C.Circuit which asks whether the Commission can justify a finding of convenience and necessity for a pipeline under Section 7 of the Natural Gas Act when it will be used almost entirely to export gas. The issue is particularly important because under the Natural Gas Act, companies cannot use eminent domain authority for gas exports. As you can hear in the oral argument, the panel had some concerns about the Commission’s certificate and grilled both FERC counsel and the panel on these issues. Shortly after the argument, the pipeline moved to dismiss the case for lack of standing – claiming that easement agreements that the Petitioners were forced to execute in May 2019 (notwithstanding that the company had been using the property for two years) vitiated their standing to sue and mooted the case. Below are some of the key documents:
City of Oberlin, Ohio et. al. v. FERC, Docket No. 18-1248 (D.C. Circuit 2018):
On Wednesday, September 6, 2017, the Law Offices of Carolyn Elefant, on behalf of Bold Alliance and more than 55 landowners filed this historic lawsuit against the Federal Energy Regulatory Commission, Mountain Valley Pipeline and Atlantic Coast Pipeline challenging the constitutionality of the use of eminent domain to take property for FERC-approved pipelines. Although eminent domain has long been used by public utilities, changes in the gas industry in the form of deregulation and overseas export opportunities call into question whether use of eminent domain is constitutional when pipelines no longer serve a public use. News coverage of the lawsuit is available here. For additional information, contact Carolyn Elefant at email@example.com.
The firm just released our 2016 Appellate Round-Up – the flagship feature of our newsletter for the past five years. Essentially, we summarize every federal circuit court decision involving FERC and provide the stats on FERC’s rate of reversal before the court (spoiler: it’s not very high). To view the 2016 Appellate Round-Up (and other firm news), visit here. To view past issues, visit here and to subscribe, visit here.