Here's the latest in an issue we've been following closely. In the Natural Gas Act, Congress has not delegated to private pipeline companies the quick-take power. To get around that, to get immediate possession of properties which they are taking, pipeline companies use a procedural mechanism -- a preliminary injunction under Fed. R. Civ. P. 65 -- to get the same result.
A preliminary injunction in these case looks like quick take, quacks like quick take (there's a deposit, just like in quick take), and walks like quick take (the effect is the same). But it's not really quick take because Congress has never actually approved of quick take in NGA takings.
Of course, by the time a court gets to the actual merits of the validity of the taking -- if it ever does -- the pipeline is in place, and the whole thing a "done deal." Fait accompli.
In Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, No. 18-1159, the U.S. Court of Appeals is considering that scheme. But an existing opinion by a different panel of the same court had approved it. East Tennessee Natural Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004) ("The Natural Gas Act (NGA or the Act), 15 U.S.C. § 717f(h), gives a gas company the power to acquire property by eminent domain, but the Act does not provide for immediate possession, that is, possession before just compensation is determined and paid in a condemnation action. The main question in this appeal is whether a gas company can obtain immediate possession through the equitable remedy of a preliminary injunction. We hold that it can.").
Consequently, the district court entered a preliminary injunction allowing the MVP to take possession of property and begin construction. The owners appealed.
So the first hurdle the property owners faced was how to overcome Sage. They addressed it head-on, arguing in their brief that "[t]hese appeals present the opportunity for this Court to correct the constitutionally-infirm course set in [Sage]. That decision trespassed onto Congress' domain by granting private gas companies the extraordinary 'quick-take' eminent domain power, which is Congress's alone to give." (We will post the brief in this case in a separate post.)
Yesterday, the Fourth Circuit held oral arguments. We think that the entire recording is well worth listening to (our friend and colleague Chris Johns argued for the property owners on the Sage issue). As this report noted ("Fourth Circuit Chief Justice Questions Validity of Eminent Domain"):
In a case involving the planned Mountain Valley Pipeline, one of two controversial projects that are currently the subject of appeals before the circuit, Chief U.S. Circuit Judge Roger Gregory questioned the long-standing precedents that allow the government to seize land....
“This is something extraordinary the courts have granted and the question is should it happen now before it’s done,” Gregory said. “You want to abort the [normal and lengthy eminent domain] process and take it now.”
“Maybe Sage is wrong.” he said.
Stream the argument recording below, or download the mp3 here.
We think this is a huge issue. There's a circuit split. Eminent domain statues -- as derogations of the common law -- are supposed to be strictly construed in favor of the property owner and against the condemnor. If pipeline companies want to exercise the quick take power, there's an easy solution: get Congress to give it to you.
But you can't just make up a process that is like quick take but isn't quick take, just because it's expedient to do so. Eminent domain, especially, requires more.