Woodrow v. Fed. Energy Regulatory Comm'n
| Decision Date | 06 May 2020 |
| Docket Number | Civil Action No. 20-6 (JEB) |
| Court | U.S. District Court — District of Columbia |
| Parties | CLETUS WOODROW & BEVERLY BOHON, et al., Plaintiffs, v. FEDERAL ENERGY REGULATORY COMMISSION, et al., Defendants. |
This case presents the latest trickle in a veritable flood of litigation relating to Defendant Mountain Valley Pipeline, LLC's proposed construction of a natural-gas pipeline through Virginia and West Virginia. In October 2017, Defendant Federal Energy Regulatory Commission granted MVP a certificate that permitted the company to build the pipeline and enabled it to exercise the agency's eminent-domain authority to do so. That approval has thus far withstood various administrative challenges as well as review in multiple federal courts of appeals.
Not easily deterred, Plaintiffs — homeowners along the proposed pipeline's path — bring another suit, this one featuring constitutional challenges to FERC's enabling statute, the Natural Gas Act. They seek, among other things, a nationwide injunction ending the existing FERC pipeline-approval process and voiding all pipeline certificates, including the one issued to MVP. The NGA, however, channels review of FERC decisions relating to pipelines — including constitutional claims inhering in those controversies — to the agency, not to a district court. Plaintiffs' attempt to transform their grievance with FERC over the MVP certificate into a facial constitutional challenge cannot save them from the statutorily mandated administrative-review process. The Court will therefore dismiss the case for lack of subject-matter jurisdiction.
Congress enacted the NGA, 15 U.S.C. § 717, et seq., "with the 'principal purpose' of 'encouraging the orderly development of plentiful supplies of natural gas at reasonable prices.'" Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1307 (D.C. Cir. 2015) (alterations omitted) (quoting NAACP v. Fed. Power Comm'n, 425 U.S. 662, 669-70 (1976)). "The Act vests FERC with broad authority to regulate the transportation and sale of natural gas in interstate commerce." Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d 97, 101 (D.C. Cir. 2014). The agency's responsibilities include the authorization of interstate natural-gas pipelines, such as the MVP project at issue here. See 15 U.S.C. § 717f(c)).
The "keystone" of FERC's pipeline-authorization process is the so-called "certificate of public convenience and necessity." Bold All. v. FERC, No. 17-1822, 2018 WL 4681004, at *1 (D.D.C. Sept. 28, 2018) (quoting 15 U.S.C. § 717f(d)). These certificates, which permit "the construction or extension of natural gas transportation facilities," are a prerequisite for the construction of any interstate natural-gas pipeline. Myersville, 783 F.3d at 1307 (citing 15 U.S.C. § 717f(c)). According to the NGA, FERC "shall" issue a certificate "to any qualified applicant" upon a finding that "the applicant is able and willing properly to do the acts and to perform the service proposed," and that the proposed service or construction "is or will be required by the present or future public convenience and necessity." 15 U.S.C. § 717f(e). FERC's issuance of a certificate, moreover, conveys the power of eminent domain to its holder.Id. § 717f(h). Armed with that authority, the certificate holder can initiate condemnation proceedings as necessary. Id.
FERC's issuance of a certificate represents the culmination of an extensive application process and sets into motion elaborate review mechanisms. First, in order to receive the certificate, the applicant must submit reams of technical, economic, and environmental information concerning the project. See 18 C.F.R. § 157.6(b) (). The applicant must also make a "good faith effort to notify all affected" landowners, towns, communities, and government agencies, and any interested party, including environmental and tribal groups may intervene in the proceeding to file comments of their own. Id. §§ 157.6(d), 157.10. After a lengthy review of these materials — along with the consideration of a number of factors, such as the project's environmental impact and whether its "public benefits" outweigh the "potential adverse consequences" — the agency may grant the certificate. Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227 (Sept. 15, 1999), clarified, 90 FERC ¶ 61,128 (Feb. 9, 2000), further clarified, 92 FERC ¶ 61,094 (July 28, 2000) ().
Next, "aggrieved" persons, ranging from the applicants themselves to interested homeowners, advocacy groups, and state and local governments, may challenge FERC's decision or ask for modifications of its order. See 15 U.S.C. § 717r(a). To do so, they must first file for rehearing before the agency. Id. If FERC declines to rehear the matter or issues a final order regarding it, the parties may then file a petition for review in the appropriate court of appeals. Id. Upon the filing of such a petition, the court of appeals retains "exclusive" jurisdiction to affirm, modify, or set aside such an order "in whole or in part." Id. § 717r(b)(emphasis added). The petitioners may not raise new objections to the agency's order in the court of appeals unless "there is reasonable ground for [the] failure" to offer them previously. Id.
This dispute traces its roots to October 2015, when MVP set the above-described process in motion by filing an application with FERC to maintain, construct, and operate a pipeline running from Wetzel County, West Virginia, to Pittsylvania County, Virginia. See Mountain Valley Pipeline, LLC Equitrans, L.P., 161 FERC ¶ 61043 p. 1 (Oct. 13, 2017). After two years of review, including reflection on hundreds of comments from interested parties, FERC issued MVP the coveted certificate of authorization. Id.
Over twenty affected landowners, environmental organizations, and tribal groups sought rehearing of FERC's issuance of the certificate, which the agency rejected in a lengthy opinion affirming its prior conclusions. See Mountain Valley Pipeline, LLC Equitrans, L.P., 163 FERC ¶ 61197 (June 15, 2018). Many of those same parties then petitioned for review in the D.C. Circuit, lodging sixteen different challenges, both statutory and constitutional, relating to the certificate's issuance. See Appalachian Voices v. FERC, No. 17-1271, 2019 WL 847199, at *1 (D.C. Cir. Feb. 19, 2019). The Court of Appeals affirmed the agency's decision and, in doing so, rejected the petitioners' constitutional claims grounded in the Fifth Amendment's Due Process and Takings Clauses. Id. at *2-3.
While the MVP project flowed through the agency and into the Circuit, a separate group of landowners along the pipeline's path brought suit in the Western District of Virginia arguing — as Plaintiffs do here — that the NGA constitutes an impermissible delegation of legislative authority to the agency. Berkley v. Mountain Valley Pipeline, LLC, No. 17-357, 2017 WL 6327829, at *2 (W.D. Va. Dec. 11, 2017). The district court dismissed the case, concluding thatthe NGA stripped it of jurisdiction over those claims, id. at *1, and the Fourth Circuit affirmed. See 896 F.3d 624, 627 (4th Cir. 2018), cert. den. sub nom. Berkley v. FERC, 139 S. Ct. 941 (2019).
Finally, and concurrently with the Virginia action, a group of similarly aggrieved landowners — including two of the very same Plaintiffs in this action — filed suit in this district against MVP and FERC, arguing, inter alia, that the certificate program created by the NGA delegates legislative power to the agency in violation of the Constitution. See Bold All., 2018 WL 4681004, at *1; see also id. ECF No. 1 (Bold Alliance Complaint), ¶¶ 81-86. The court dismissed the suit for lack of jurisdiction, concluding that the NGA "provides a specific procedural path for review: seeking a rehearing before FERC, followed by filing a petition for review with the appropriate court of appeals," which the plaintiffs could not bypass by framing their claims as constitutional challenges. Bold All., 2018 WL 4681004, at *1.
Ensuring that this new year would not proceed far without its own MVP-related challenge, Plaintiffs — six landowners whose property interests will be affected by the project — filed their Complaint on January 2, 2020. MVP seeks access to almost three acres of Cletus and Beverly Bohon's property in Ellison, Virginia, for the pipeline. See ECF No. 1 (Complaint), ¶ 1. The Bohons have refused to sell, and MVP now seeks to exercise eminent domain over the property. Id. Similarly, the company proposes to exercise its power to construct an easement over Robert and Aimee Hamm's family home on Bent Mountain in Virginia and to take 5.88 acres of land from Wendell and Mary Flora's farmhouse in Franklin County, Virginia. Id., ¶¶ 2-3.
All three counts of the Complaint allege that the NGA is facially unconstitutional, but for purportedly different reasons. Count I alleges that the Act is infirm because Congress has delegated to FERC "legislative power" in granting the agency "unfettered discretion to . . . grant certificates of public convenience and necessity." Id., ¶¶ 40-47. Count II alleges that the NGA improperly allows FERC to transfer its eminent-domain authority to private entities, which violates "the separation of powers and non-delegation doctrine." Id., ¶¶ 48-53. Count III, pled in the alternative to Count II, asserts that the unconstitutionality lies in the Act's delegation to FERC of the legislative power of exercising eminent-domain authority. Id., ¶¶ 54-64.
Plaintiffs' requested relief is breathtaking in scope. They seek a declaration that: (1) the NGA's delegation of eminent-domain authority to FERC or to any private entity "including MVP" is...
To continue reading
Request your trial