New Cert Petition: Can Congress Delegate To An Executive Agency Appeals Process The Power To Decide Whether A Taking Violates The Public Use Clause?

Pipelines are a hot topic. So much so that we're devoting a couple of sessions at the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference to the subject ("Where You Haven't Gone Before: New Approaches to Challenging the Take," and "Compensation Pitfalls: How to Avoid Problems," for example). 

And, with this recently-filed cert petition in a case we've been following, the issue just got hotter. 

In Berkley v. FERC, the U.S. Court of Appeals for the Fourth Circuit held that the federal Natural Gas Act allows the Federal Energy Regulatory Commission to delegate eminent domain authority to Mountain Valley, and that any challenges to that authority must be done via the NGA's administrative review process.

We predicted a cert petition because it didn't seem that the constitutional question of whether a taking is for public use could be relegated for resolution to the administrative appeals process, as the Fourth Circuit concluded. As we wrote, the court held that "a challenge to the constitutionality of the NGA must be considered first by the agency which executes the statute. That seems off to us. FERC is an executive agency, without any power to judge the constitutionality of the statute which it administers. Judges do such things. Or so we thought."

Now we have the cert petition, with these two Questions Presented:

I.  Is a delegation of Congressional power an “agency order” or “agency action” such that a party wishing to challenge that delegation must file that challenge with the agency under the administrative review scheme of 15 U.S.C. § 717r, or is the proper forum for constitutional challenges the district court?

II. Is an administrative agency’s test for determining “public use” for purposes of eminent domain an “agency order” such that a party wishing to challenge that test as unconstitutional must file that challenge with the agency and adhere to its administrative review scheme, or is the proper forum for constitutional challenges the district court?

Check it out. More to come. 

Petition for Writ of Certiorari, Orus Ashby Berkley v. FERC, No. ___ (Oct. 24, 2018)