Over the last year or so, anti-pipeline forces have increasingly used “tree sitting” to obstruct natural gas infrastructure projects. The tactic involves individuals who climb trees slated for removal in a proposed pipeline project and stay there—sometimes for months and often aided by family, friends or others—forcing project developers to take various countermeasures.

Earlier this month a Virginia federal district judge rejected a novel effort by Mountain Valley Pipeline, LLC (MVP) to join certain unnamed tree sitters (“Tree Sitter 1” and “Tree Sitter 2”) as defendants in a pending Natural Gas Act (NGA) eminent domain action to condemn easements over land in southwestern Virginia for construction of the Mountain Valley Pipeline.[1] In addition to interfering with its use of the easements being condemned, MVP alleged that the “tree sitters” or their supporters had assaulted a security officer who was part of a tree clearing crew on the project. Notably, though it declined to join the “tree sitters” as parties, the court observed that MVP still had other available remedies against them.
Continue Reading

In Algonquin Gas Transmission, LLC v. Weymouth Massachusetts, a First Circuit panel last month ruled that a statute of limitations defense is inapplicable to a Natural Gas Act (NGA) preemption claim against a locality. The court also held that the Federal Energy Regulatory Commission’s (FERC) longstanding policy of “encourag[ing] cooperation between interstate pipelines and

Last week, the US District Courts for the Eleventh and Sixth Circuits joined a growing chorus of other circuits holding that a Natural Gas Act (NGA) condemnor can obtain immediate, pre-trial possession of condemned land through a preliminary injunction (PI) remedy so long as it demonstrates its substantive power of eminent domain as a FERC certificate holder under NGA § 7(h).[1] The Sixth Circuit’s ruling also rejected arguments that export-related aspects of a domestic pipeline project somehow negated a pipeline company’s public interest showing, required for obtaining a PI granting immediate possession. In addition, the two rulings address several commonly-arising procedural issues in a manner favorable to pipeline companies seeking immediate possession in NGA condemnations.
Continue Reading

The US Court of Appeals for the Third Circuit recently issued two decisions concerning the relationship between the Natural Gas Act (NGA) exclusive jurisdiction provision at 15 U.S.C. § 717r(d)(1) and the administrative review process for state-issued environmental permits for interstate natural gas pipeline projects. These decisions are briefly described as follows:

  • In Delaware Riverkeeper et al. v. Sec PA Dept. Env. Protection, et al. (Sept. 4, 2018), the court held that only “final” state agency actions are reviewable under the NGA’s exclusive jurisdiction provision. The court determined, however, that the state-issued water quality certification at issue was reviewable “final” action even though it was subject to further administrative review because, under the relevant state law, the certification had legal effect as issued and was the final action of the agency that issued it.
  • In Township of Bordentown, New Jersey et al. v. FERC et al. (Sept. 5, 2018), the court held that state administrative review of environmental permits issued for natural gas pipeline projects is not preempted by the NGA’s exclusive review provision, as the NGA only eliminates state court review of interstate pipeline-related state agency orders.


Continue Reading

On July 10, 2018, a panel of the United States Court of Appeals for the DC Circuit rejected an environmental group’s claim that FERC’s funding mechanism results in unconstitutional bias in favor of the pipeline industry. The court also rebuffed a due process attack on the Commission’s use of “tolling orders” to avoid automatic denial of rehearing requests after 30 days. The decision is noteworthy as it represents the latest rejection of similar constitutional challenges to FERC’s operations and practices that pipeline opponents have been raising with increasing frequency. The ruling also highlights the difficulty of bypassing the Natural Gas Act’s administrative rehearing and judicial review process through novel broadside attacks on the Commission’s general practices and procedures.

Continue Reading

On January 31, 2018, in proceedings to condemn easements for the Mountain Valley Pipeline project, the US District Court for the Western District of Virginia ruled that the pipeline company’s preliminary injunction motions for pretrial possession of the easements would be granted only if it appraised each of the nearly 300 properties at issue.
Continue Reading

As previously reported on PipelineLaw, the ongoing controversy over an April 2016 decision by the New York Department of Environmental Conservation (NYDEC or the Department) to deny a Clean Water Act (CWA) water quality certification to Constitution Pipeline Company (Constitution or the Company) for its interstate natural gas pipeline project in Pennsylvania and New York highlights tensions between federal and state oversight of such projects.
Continue Reading

The Third Circuit held in a highly anticipated recent decision that state actions on water quality-related permits for interstate natural gas pipeline projects are reviewable only in the federal Circuit Courts of Appeals, in accordance with the Natural Gas Act (NGA).
Continue Reading

Recent developments in cases brought by Constitution Pipeline Company to challenge New York’s denial of certain water quality authorizations highlight tensions between federal and state oversight of interstate natural gas pipeline construction projects, and the accompanying potential for costly and protracted delays.
Continue Reading

FERC recently published a revised draft Guidance Manual for Environmental Report Preparation for review and public comment. The revised Guidance Manual updates FERC’s 2002 guidance manual on environmental report preparation for projects seeking FERC authorization under the Natural Gas Act (NGA), supplementing the previous guidance as well as adding new sections explaining requirements for environmental report preparation.
Continue Reading