Pipeline Challengers See Silver Lining in Appellate Defeat

WASHINGTON (CN) — A scathing opinion out of the D.C. Circuit Friday has inspired hope from environmental groups and homeowners about the future of court challenges to pipeline construction.

Though the three-judge panel shot down a challenge of the Atlantic Sunrise Project, a pipeline that snakes from Pennsylvania, across the Carolinas and into Alabama, U.S. Circuit Judge Patricia Millet accused the Federal Energy Regulatory Commission of twisting the court’s “precedent into a Kafkaesque regime.”

“Under it, the commission can keep homeowners in seemingly endless administrative limbo while energy companies plow ahead seizing land and constructing the very pipeline that the procedurally handcuffed homeowners seek to stop,” Millet wrote.

Siobhan Cole, an attorney for the challengers, said in an interview she found Millet’s words encouraging and that there are plans now to petition for an en banc rehearing.

“The pipeline is in the ground and my clients’ property has effectively been taken but they’re hopeful that what the court is signaling is that there is an opportunity to change this process,” Cole said.

Federal law says the commission is required to either grant or deny petitions for review within 30 days, thus giving challengers time to appeal the decision to the D.C. Circuit.

In the underlying lawsuit, however, a group led by the Allegheny Defense Project alleged that the agency had for years been intentionally shelving petitions, rather than deciding them, to keep pipeline construction moving forward.

Only once the pipeline is in the ground, they argued, is the petition fully processed.

“So then you have this hollow ability to go to the D.C. Circuit and appeal but the pipeline has already been built and your property must of the time has already been taken,” Cole said.

Millet drew the same conclusion and called in her concurring opinion for the court to review the Federal Energy Regulatory Commission.

“In cases involving private property rights, the commission has transformed this court’s decisions upholding its tolling orders into a bureaucratic purgatory that only Dante could love,” Millet wrote.

The judge continued: “While I acknowledge that circuit precedent currently forecloses the homeowners’ constitutional challenge to the tolling orders, this case starkly illustrates why a second look by us or by the commission is overdue.”

The court’s lead opinion is unsigned. It notes that, as the petition for review of the Atlantic Sunrise pipeline was pending, the Federal Energy Regulatory Commission issued an order authorizing the Transcontinental Gas Pipe Line Company to begin construction.

“Transco broke ground that same day,” says the opinion, which Millet joined alongside Chief U.S. Circuit Judge Merrick Garland and Judge David Tatel.

Companies must pass the threshold of demonstrating to the federal commission that the pipeline meets a public need, under a Supreme Court decision from 1954.

But despite the fact that the U.S. has in recent years become a net exporter of natural gas, Cole said the same standard applies.

“As long as they have signed up enough shippers to use up all of the capacity of the pipeline,” Cole said, companies are vested with the authority to seize land to begin construction on property without an owner’s consent.

Cole added that the Federal Energy Regulatory Commission’s practices are denying property owners’ their right to due process as gas companies profit from international exports.

Echoing the same concerns, attorney Elizabeth Benson, who argued the case alongside Cole, said the federal commission has ignored the “plain text of the law.”

“There’s no need for these dirty, dangerous pipelines at a time when clean, renewable energy is abundant and affordable,” Benson added over email Friday. 

The Federal Energy Regulatory Commission and the Transcontinental Gas Pipe Line Company did not respond to request for comment.

%d bloggers like this: