Here's the latest cert petition about an issue we've been following closely. Givens v. Mountain Valley Pipeline, LLC, No. ___ (July 3, 2019)
As regular readers understand, several federal courts of appeals recently have upheld giving prejudgment possession of property to a private pipeline condemnor once a district has ruled in favor of the pipeline that it qualifies under the three predicates in 15 U.S.C. § 717f(h).
These courts conclude that summary judgment -- which recognizes that a private pipeline company with a FERC certificate may exercise eminent domain power under the NGA -- is enough to also grant the pipeline possession of the land now, even though the NGA does not delegate the quick take power. In our view, these injunctions grant pipelines a substantive right and are an usurpation of Congress' power to determine how the delegated eminent domain power gets exercises. The courts, however (with the exception of the Seventh Circuit) seem to assume that, oh well, the pipelines are going to get the property, so there reason to not give them possession now by granting a Rule 65 injunction, even though that radically alters the status quo.
This is the third petition filed on this issue lately (we filed this amici brief supporting the second). This one seeks review of the Fourth Circuit's Mountain Valley Pipeline opinion. We couldn't summarize the case and issues better than a recent piece in E&E News by Pamela King, "Landowners ask justices to nix companies' 'quick take' power."
Unlike standard eminent domain proceedings, which require just compensation in exchange for acquiring land, immediate possession or "quick take" power allows developers to take private property months or years before paying.Although Congress did not convey quick-take authority to pipeline developers in the Natural Gas Act, several appellate courts have interpreted the law to allow those firms to take property to build their projects before landowners ever receive a dime.
We recommend reading the entire piece. Recently, we also recorded a podcast with two of the major players in this and similar cases ("Podcast Now Available: Is “Possess Now, Pay Later” Constitutional in Private Pipeline Takings?").
Here's the Question Presented in Givens:
Through the Natural Gas Act (“NGA”), 15 U.S.C. §717 et seq., Congress delegates the federal power of eminent domain to private pipeline companies to build interstate pipelines. Because the Act contains no quick-take provision, courts agree that the Act itself gives a pipeline company only the “straight” power of condemnation. This means the condemnor may take ownership and possession of the land after the trial on just compensation by paying the amount of the final judgment.The Fourth Circuit and other courts of appeals nevertheless hold that district courts may issue preliminary injunctions granting immediate possession based on the prediction that the pipeline company will ultimately take the land under the NGA. In contrast, the Seventh Circuit holds that preliminary injunctions must be based on the parties’ substantive rights at the time the injunction issues. And because neither state law nor federal statute gives a pipeline company any substantive right to pretrial possession, an injunction granting immediate possession exceeds federal judicial power.The question presented is: whether district courts have power, before the trial on just compensation, to issue a preliminary injunction granting immediate possession of property to a pipeline company in a condemnation proceeding under the Natural Gas Act.
As noted above, we filed a brief in support of one of the earlier petitions on the same subject, so stay tuned.
Petition for a Writ of Ceritorari, Givens v. Mountain Valley Pipeline, LLC, No. ____ (July 3, 2019)
