LOCE: News & Updates

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 .

Here’s the decision. Commentary to come…

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):

Oberlin Final Brief

FERC Brief

Oberlin Final Reply

Oral Argument

Oberlin Response to Motion to Dismiss

On April 11, 2019, the D.C. Circuit will hear two seemingly small cases but that have big consequences for how applicants choose project sites and the extent to which FERC must disclose project’s climate change impacts. In  Birckhead v. FERC where I represent petitioners, we challenged the Commission’s irrational reliance on site control as a determinative factor in choosing between two sites – one which would have indisputably reduced project emissions by 40 percent and reduced the footprint of the project by half, thus decreasing the impacts on the ground. FERC found these changes insignificant. FERC also failed to quantify and evaluate the project’s upstream and downstream emissions and their impact on climate change – a sharp departure from its earlier policy.  This same issue is also the central focus of the first case that day,  Otsego 2000 v. FERC.

In addition to representing the petitioners in the Birckhead case, I also assisted the Otsego2000 group with its rehearing petition and in filing a petition for review at the D.C. Circuit before transferring the case to the current attorney Michael Sussman.

You can view the briefs from my case here:

Petitioner’s Opening Brief,

Petitioner’s Reply Brief,

FERC Brief,

Tennessee Gas Brief

Documents from the Otsego case can be found here.

Carolyn Elefant has been invited to speak at the prestigious and wildly popular ALI-CLE Conference on Eminent Domain and Land Valuation Litigation, to be held in Palm Springs, California, January 24-26, 2019. Carolyn will present on the panel entitled Pipelines I – Where You Haven’t Gone Before: New Approaches to Challenging the Take scheduled for January 25, 2019.  You may download a copy of Carolyn’s summary of emerging challenges to eminent domain takings for FERC pipelines here:

The past month has been busy for LOCE – we filed two briefs at the D.C. Circuit in the span of three weeks and argued a case during that period as well. To view the briefs, click here and here.

The firm represents Catherine Holleran and her family who made headlines a few years back when Constitution Pipeline agents, accompanied by armed marshals stormed the property to fell 558 trees for a pipeline that was ultimately denied a key permit by New York regulators. Here are the papers that we’ve filed seeking a return of the property and payment for full restoration of the property, compensation for lost business and other damages.

Petition to Rescind Certificate  (June 2018)

Motion to Dissolve Injunction  (July 2018)

Holleran Declaration (July 2018)

Constitution Response (July 2018)

Holleran Reply  (Aug 2018)