4th Cir Oral Arguments In Pipeline Takings Case: "Meaningful" Judicial Review, Or FERC Procedures?

Yesterday, the U.S. Court of Appeals heard arguments about the Mountain Valley Pipeline (which will run from northern West Virginia to southern Virginia), a situation receiving a lot of attention, and which has generated a number of lawsuits (go here for a list of the cases and a summary).

The question in Berkley v. Mountain Valley Pipeline, LLC, No. 18-1042, is whether the Federal Energy Regulatory Commission properly delegated eminent domain authority to Mountain Valley. The District Court dismissed the lawsuit for lack of jurisdiction, concluding that the plaintiff property owners could only challenge the takings in FERC under the Natural Gas Act. 

Here are the issues presented (from the property owners' Opening Brief):

1. Whether the district court erred in its application of the Thunder Basin framework and finding that Congress implicitly divested the district court of subject matter jurisdiction over the Landowners’ claims.

2. Whether the district court erred in finding that the Landowners’ challenges inhered in the FERC process and thus were subject to the NGA’s review provisions set forth in 15 U.S.C. § 717r.

The court has made the audio recording of the arguments available, and you can stream it here:

Can't stream? Download the mp3 here.

Here are the briefs:

• Opening Brief (property owners)
• Answering Brief (Mountain Valley)
• Answering Brief (FERC)
• Reply Brief (owners)

Now we wait.