Here's the amici brief we're filing today on behalf of the Owners' Counsel of America, New Jersey property owners subject to natural gas pipeline takings, the Institute for Justice, and the Cato Institute, in support of a cert petition which is challenging the federal courts of appeals which 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 the Natural Gas Act, 15 U.S.C. § 717f(h). .
The issue is one we've covered before (in our amicus in support of an earlier petition on the same issue), but there are some new twists which make this case especially ripe for SCOTUS review.
First, this isn't some isolated problem, but of nationwide concern. This is at least the third cert petition recently on this subject. The problem isn't going away.
Second, as D.C. Circuit Judge Millett pointed out last week, between administrative delays in FERC and the district courts' routine grants of these immediate possession preliminary injunctions, property owners are being run through what she describes as a "scheme," a "Kafkaesque regime," and "a bureaucratic purgatory that only Dante could love." (Strong letter to follow.) While FERC delays and delays review, the pipeline runs over to the district court and obtains an injunction that allows it to obtain possession and start building. Then, when FERC gets around to actually reviewing the propriety of the taking, its a done deal.
Third, as one commentator noted, the D.C. Circuit isn't likely to do anything about the long-standing precedent that allows FERC to avoid the 30-day time window for it to act on a petition. Instead, it has administratively expanded the 30-days by "tolling" what the commentator refers to as "placeholder actions" which signal that FERC intends to act substantively on the petition (but actually does not). Thirty days isn't a realistic time to review petitions, and instead of asking Congress to amend the statute, FERC is simply amending the statute by admin rule. With the D.C. Circuit unlikely to overrule the case approving this procedure (despite Judge Millett's call to do so), the only avenue which property owners have to challenge the scheme is the Supreme Court in these injunction cases.
Finally, the Supreme Court has recently recognized that this is a problem of constitutional magnitude. In Knick, the majority held that "a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it." Knick v. Township of Scott, 139 S. Ct. 2162, 2170 (2019). Injunctions are not the "reasonable, certain, and adequate" right to just compensation the Court acknowledged comply with the Fifth Amendment. Deviation from that constitutional process for the sake of convenience or expedience is lawlessness.
Here's a summary of our brief's argument:
The process by which private pipeline companies are seizing property nationwide under the power of eminent domain while at the same time avoiding judicial review of public use challenges in FERC was recently described as “a Kafkaesque regime,” and “a bureaucratic purgatory that only Dante could love.” Allegheny Defense Project v. Fed. Energy Reg. Comm’n, ___ F.3d ___, 2019 U.S. App. Lexis 23147 (D.C. Cir. Aug. 2, 2019) (Millett, J., concurring). With judicial acquiescence, pipeline companies are hijacking the constitutional eminent domain process, shortcutting the critical protections by which the Constitution keeps “government’s most awesome grant of power” in check.These injunctions cannot be viewed in isolation, but as part of an overall scheme in which precondemnation possession in district courts and the start of construction goes hand in glove with routine administrative delays, resulting in land being literally bulldozed before it is condemned, the owners’ legal objections rendered pointless, and the pipeline a fait accompli. See id. at *19 (Millett, J., concurring).Only this Court can resolve the “quagmire . . . that walls homeowners off from timely judicial review of [FERC]’s public-use determination, while allowing eminent domain and functionally irreversible construction to go forward [that] is in substantial tension with statutory text and runs roughshod over basic principles of fairness.” Id.This case and others nationwide only add to the burdens which property owners already suffer.
Br. at 6-7 (footnote omitted).Stay tuned, there will be more.
