Joint Concurrence - Commissioner Richard Glick and Commissioner Allison Clements
January 19, 2021
Docket No. CP20-518-000
Order: C-15
We concur in today’s order because we agree that the statute and relevant court cases leave us no discretion to condition eminent domain authority following the issuance of a certificate under section 7 of the Natural Gas Act (NGA).[1] Nevertheless, we write separately to explain our belief that those cases illustrate why the Commission should end its current approach to issuing conditional section 7 certificates.
The Commission regularly issues section 7 certificates when a pipeline developer does not have all—or sometimes even any—of the regulatory authorizations and permits needed to construct a proposed pipeline. That practice allows pipeline developers to condemn land via eminent domain before it is prudent or necessary to do so.[2] Once the Commission issues a certificate, nothing stands between a pipeline developer and taking that certificate to court to begin the process of condemning private land.[3] Indeed, pipeline developers often begin the condemnation process just days after the Commission issues a certificate.[4] The developers are often far from the point of commencing construction as they must still contend with the legal, regulatory, and practical hurdles associated with securing the necessary permits. Under those circumstances, we should not be awarding conditional certificates that allow a pipeline developer to rush to seize private land.[5]
The PennEast pipeline illustrates the problem. The Commission issued PennEast a certificate on January 19, 2018.[6] Beginning roughly two weeks later, on February 6, 2018, PennEast filed over a hundred separate eminent domain proceedings in New Jersey alone.[7] As of today, exactly three years after issuing that certificate, PennEast still does not have all the federal authorizations it needs to construct the project. It is not fair to have deprived so many landowners of their private property at least three years before any construction can occur and with substantial uncertainty remaining.
But there is a straightforward solution to this problem. The Commission can stop its practice of issuing conditional section 7 certificates as a matter of course. Doing so would make good on the Commission’s concerns for landowners’ interests by ending a premature use of eminent domain.[8]
For these reasons, we respectfully concur.
[1] See PennEast Pipeline Co., 174 FERC ¶ 61,056, n.17 (2021) (Order) (citing Twp. of Bordentown, N.J. v. FERC, 903 F.3d 234, 265 (3d Cir. 2018), Berkley v. Mountain Valley Pipeline, LLC, 896 F.3d 624, 628 (4th Cir. 2018), and Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960, 973 (D.C. Cir. 2000)).
[2] See, e.g., PennEast Pipeline Co., 162 FERC ¶ 61,053 (2018) (PennEast) (Glick, Comm’r, dissenting at 3).
[3] See, e.g., Twp. of Bordentown, 903 F.3d at 265 (explaining that NGA section 7(h) “contains no condition precedent other than that a certificate is issued and that the certificate holder is unable to acquire the right of way by contract”) (internal quotations and alterations omitted).
[4] See, e.g., Spire STL Pipeline LLC, 169 FERC ¶ 61,134 (2019) (Glick, Comm’r, dissenting at P 25 & n.63) (discussing how the Spire pipeline commenced over 100 separate eminent domain actions beginning just a week after receiving its section 7 certificate); infra P 3 (discussing PennEast’s exercise of eminent domain).
[5] We recognize that it is the Commission’s practice not to allow a pipeline developer to begin construction until it receives all necessary authorizations. See, e.g., Order, 174 FERC ¶ 61,056 at P 2. That practice is necessary for the issuance of conditional certificates to be even plausibly legal. But it leaves landowners exposed to the loss of their property while the proposed pipeline waits for federal authorizations that may, or may not, be issued.
[6] PennEast, 162 FERC ¶ 61,053.
[7] See, e.g., Verified Complaint, PennEast Pipeline Co. v. David & Maryann Briede, 3:18-cv-01585 (BRM) (DEA) (D.N.J. Feb. 6, 2018).
[8] We recognize that there may be instances where access to land along a proposed pipeline route is necessary to complete the surveys that may be required for certain federal authorizations. But those are the sort of details that we—or Congress—could resolve should the Commission end its current practice of issuing conditional certificates.