If you missed the three-and-a-half hours (!) of this morning's teleconferenced oral argument of the en banc U.S. Court of Appeals for the D.C. Circuit in a case we've been following (along with a related case), well, you are in luck. There are multiple ways to listen in. You can stream it from YouTube above. you can stream it below, or you can download the mp3 from the court's website. Whatever way you choose, you should do so.
This is the case that reminded us of 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.
You are by now familiar with the background of the panel decision of how private pipelines are have been delegated the federal eminent domain power in the Natural Gas Act. 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 the panel decision 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 panel 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 we predicted, the D.C. Circuit granted en banc review, a very rare occurrence.
Pay particular attention to the points in the arguments when D.C. Circuit Judge Millett questions the advocates, because she wrote a very tart concurring opinion that contains all sorts of evocative language,
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. The property owners didn't get a hearing, they got 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 would say.
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.
So please check it out. There are worse ways to use the long hours of work-at-home while we are Waiting for FERC. This one isn't over by a long shot.
