Supreme Court review denial favors pipeline company

On January 22, 2019, the U.S. Supreme Court denied review of a Fourth Circuit decision affirming the dismissal of an action brought by landowners in the Western District of Virginia. The action sought to prohibit the Federal Energy Commission (FERC) from issuing a Certificate of Public Convenience and Necessity to Mountain Valley Pipeline LLC, which would provide eminent domain authority to the pipeline company.

The landowners brought injunction actions against Mountain Valley and FERC, claiming FERC’s issuance of a certificate would violate the Fifth Amendment. They argued that the project does not constitute a public use and that the delegation to FERC to grant eminent power via the issuance of a certification is so broad that FERC cannot delegate eminent domain authority to Mountain Valley.

The Fourth Circuit affirmed the district court’s holding that it lacked jurisdiction to hear the claims, finding that under the Natural Gas Act, 15 U.S.C. 717r, the challenges had to be heard first by FERC in the rehearing process and then appealed to the appropriate circuit court of appeals.