You remember Samuel Beckett's classic absurdist play, Waiting for Godot. Two guys spend the entire time waiting for another guy (you know who) to show up, but he never does. There are nearly endless interpretations of its meaning (if any), but everyone pretty much agrees that it is at least about the nature of life and its existential meaningless, while both characters and the audience all wait for something that we know will never happen.
The U.S. Court of Appeals' recent decision in Allegheny Defense Project v FERC, No. 17-1098 (Aug. 2, 2019), might instead be called Waiting for FERC, because when you read through it (especially the concurring opinion by Judge Millett, which contains some very tart language (to what some have speculated is her own per curiam opinion)), you get the sense that the challengers to the pipeline are a lot like Vladimir and Estragon who spend two-plus hours waiting for nothing. Or like the refugees stuck in Casablanca, who wait, and wait, and wait. The challengers in this case an others are stuck in their own form of Purgatory -- never getting review and never quite losing but never winning until it was too late, all while the train continues to barrel down the track away from them.
You are by now familiar with the background of how private pipelines are able under the federal Natural Gas Act to exercise eminent domain. The pipeline seeks a certificate of public convenience and necessity from the Federal Energy Regulatory Commission. Administrative review leads to FERC approval for construction, and under the NGA the pipeline may exercise eminent domain if the three criteria set out in 15 U.S.C. § 717f(h) are met (as we argued in our amicus brief in a recent case, meeting these three criteria merely recognize a pipeline's standing to prosecute a straight-taking case).
Objectors may challenge the certificate via FERC's administrative process, and "[u]ntil the Commission disposes of that rehearing petition, the agency action is not final for purposes of judicial review." FERC has 30 days to act, or the administrative review petition is deemed denied. Environmental laws must also be complied with.
Transco obtained a certificate. The challengers timely filed a review petition and asked for a stay of construction. FERC granted rehearing within the required 30-days, but that rehearing was limited to "further consideration." So it wasn't a substantive win for the objectors, merely a further delay.
In the meantime, a district court granted a preliminary injunction allowing Transco to enter private property and start to build. Readers of this blog understand that this is an ongoing issue, one subject to three recent cert petitions, most recently this one. Then, before FERC dealt with the administrative review petition, it "issued an order authorizing Transco to begin construction of the Project." Slip op. at 5. The objectors filed a review petition of that order, and like the prior approval, FERC beat the 30-day deadline and "granted" it for the limited purpose of further consideration. More than nine months later, FERC denied the initial review petitions.
But by then, construction was already underway and had been for more than three months. And then three months later, FERC denied the challenge to the order authorizing construction (more than six months after the construction had actually started). Fait accompli.
You know the rest of the story. The D.C. Circuit reviews administrative appeals with a highly deferential standard, and this case was no different. Read pages 7 through 10 if you want the details.
The panel also rejected a due process argument, which asserted that FERC's authorization of construction while the challengers' initial petitions were pending denied them property. The court concluded that there is no property interest in an Environmental Assessment, the Pennsylvania Constitution, or the NGA's review procedures. (Compare M.A.K. Inv. Grp., LLC v. City of Glendale, 889 F.3d 1173 (10th Cir 2018) (city's blight designation deprived plaintiff of property right in judicial review)).
But even if there is a property right at stake, the Waiting for FERC process does not violate due process under circuit precedent which holds that "as long as FERC's public-convenience-and-necessity determination is not legally deficient, it necessarily satisfies the Fifth Amendment's public-use requirement." Slip op. at 12 (citing Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960 973 (D.C. Cir. 2000)).
Game, set, but not quite match.
As noted above, Judge Millett wrote a separate concurring opinion, which contains all sorts of evocative language, and sets up what looks like a pretty decent en banc petition or even SCOTUS review if en banc gets nowhere.
As for the Homeowners’ due-process claim, I recognize that circuit precedent ties my hands. But the Commission has twisted our 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. The Commission does so by casting aside the time limit on rehearing that Congress ordered—treating its decision as final-enough for the pipeline companies to go forward with their construction plans, but not final for the injured landowners to obtain judicial review. This case starkly illustrates why that is not right.
Concurring op. at 1.
We recommend you read all of her concurrence. It details why landowners object to these things (The Hoffmans’ house is tucked among “rolling hills” on their property—a home designed to be so private that it could not be seen from the road. They built their lives there, among “lots of wildlife,” including the scores of deer and turkeys they fed each day. Both families cherished the quiet, secluded nature of the places where they chose to live."), it notes how the objectors met every deadline, and how they "fought hard before the Commission to preserve their land."
But instead of getting a hearing, they get played:
The upshot of the Commission’s self-help was that its continued inaction on rehearing—the non-finality of the Certificate Order—jurisdictionally locked the Homeowners out of federal court.
Concurring op. at 3. Even though the FERC order was not enough to trigger judicial review, it was enough for Transco to run over to district court and obtain a preliminary injunction to enter the land and start building. Id. ("While non-final for the Erbs and Hoffmans, the Commission’s order was still final enough for Transco to prevail in an eminent domain action in a Pennsylvania federal district court and to acquire the needed easements over the Erbs’ and Hoffmans’ land.").
The objectors could do nothing but wait. "What chumps!" in Chief Justice Roberts' words.
There's a lot more which is why we suggest you read it all. FERC issues the tolling orders as "boilerplate," as Judge Millett noted, and she described the process as "a bureaucratic nightmare only Dante could love." Concurring op. at 17. There's also a strong statement about why property rights and due process were ignored here.
All teed up for further review. This one isn't over by a long shot.
More on the decision: "D.C. Circuit ruling 'first glimmer of hope' for landowners" from Energy Wire, and "FERC tolling scheme a 'quagmire,' judge says; calls for en banc overhaul" from Reuters.
Allegheny Defense Project v. FERC, No. 17-1098 (D.C. Cir. Aug. 2, 2019)
