A group of Pennsylvania landowners from Lancaster County are begging the U.S. Supreme Court to hear a case in which they say they’ve been screwed over by Atlantic Sunrise Pipeline.
The landowners say all of the courts hearing their case (all of which ruled against them) were wrong–that Atlantic Sunrise, part of Transco Pipeline, should not have been able to use eminent domain to build the pipeline before settling in court how much money the landowners would get for having their land “taken” for the project.
Of course, the landowners’ land wasn’t actually taken. The landowners can still do pretty much whatever they want on the land under which the pipeline sits. The only two things they can’t do is build a structure directly over top of the pipeline, or plant trees over it. They can, if they want, plant a garden, crops, graze farm animals–or anything else not restricted (no buildings, no trees).
What happens in these cases is that landowners who don’t want the pipeline refuse to negotiate with the company building it (Williams in this case). So Williams was forced to seek “eminent domain” condemnation of the property, which is allowed under federal law. Determining a fair price for the land, which will always be lower than if the landowner had negotiated in the first place, takes time. And lawyers. And surveyors. And researchers. And and and. In order to actually get the pipeline built in this century, the courts allowed the pipeline to commence construction while a new/separate case about how much the landowners will be compensated works its way through the court system–which can take years.
The landowners know all this and use it as a tactic to try and stop the pipeline from getting built. Drag out the case over issues of compensation, and maybe they can block the pipeline from ever getting built. Which didn’t happen. Appeals court after appeals court upheld the law–that Williams had the right to proceed, rapidly, with building Atlantic Sunrise.
The landowners, in a last-ditch effort, are asking the U.S. Supremes to hear the case claiming they’ve been denied timely compensation, perhaps holding out hope the court will tell Williams to shut down Atlantic Sunrise in the meantime, until it pays up.
The good news is that the Supremes get about 8,000 requests a year to hear cases, and accept maybe 80 of them (1%). We seriously doubt the High and Mighty Supremes will accept this case. The odds are not in favor of it.
Pennsylvania property owners who say federal courts have improperly allowed a natural gas pipeline company access to their land without arranging for compensation on Wednesday asked the U.S. Supreme Court to intervene on their behalf.
The Lancaster County residents say a correct interpretation of the Natural Gas Act would have prevented Transcontinental Gas Pipe Line Co. LLC from using their land for its Atlantic Sunrise pipeline project until a U.S. district court issued a final judgment in a condemnation lawsuit, which usually determines what would be fair compensation to the landowner. But a district judge in 2017 granted Transco access before the condemnation proceedings were complete and over the property owners’ objections. The Third Circuit upheld the judge’s ruling on appeal in October.
Transco has already completed construction of the pipeline section at issue, but because there have been no final judgments in the condemnation lawsuits, the landowners still haven’t been paid, they said in a petition for a writ of certiorari.
Congress never intended to allow private companies to gain access to land through eminent domain on an expedited basis before paying the property owner, the petition said.
“The pipeline companies accelerate the parts of eminent domain they like — installing pipelines on other people’s land — while slowing down the part they are less enthusiastic about, specifically, paying the property owners,” Robert McNamara, a senior attorney with the Institute for Justice who is representing the landowners, said in a statement Wednesday.
Although governments can exercise “quick take” condemnation power under the Declaration of Taking Act, the Natural Gas Act has no such provision. The landowners said at the Third Circuit that courts can’t grant that authority on their own, but the appeals court said what happened with the Atlantic Sunrise project wasn’t actually a “quick take” action.
The appeals court found that Transco had satisfied the requirements that would allow courts to grant eminent domain power under the Natural Gas Act’s Section 717f(h), including obtaining a certificate of public convenience and necessity from the Federal Energy Regulatory Commission, even without the district court having reached a final judgment.
This interpretation of the act is unfair and wrong, the landowners said.
“When Congress actually authorizes condemnors to take immediate possession of land, it routinely insists that property owners be paid for their loss immediately,” they said in their petition.
Not only that, the Third Circuit’s decision runs counter to the Supreme Court’s previous findings on the question, the petitioners said. For example, they noted that the high court in 1999’s Grupo Mexicano de Desarrollo v. Alliance Bond Fund held that unless Congress has specifically authorized it, federal courts may not “rearrange” rights to use property before a final judgment is entered.
The landowners also said the Supreme Court should hear their appeal because the circuit courts are split on this issue, with the Seventh Circuit being the only one that has interpreted the Natural Gas Act the way they think it should be.
“Other circuit courts adopting a contrary rule have attempted to distinguish the Seventh Circuit’s decision, but their distinctions are at odds with the plain text and reasoning of the decision itself, as well as being contrary to this court’s precedents,” the petition said.
The landowners also said the justices should take the case because natural gas industry growth has meant an increase in condemnation controversies in recent years.
The Atlantic Sunrise project consists of pipeline additions or modifications in Maryland, Pennsylvania, North Carolina, South Carolina and Virginia. The project will add 1.7 million dekatherms per day of pipeline capacity — enough to serve 7 million more homes — to the company’s existing system, according to information on the project’s website.
The Williams Cos. Inc. spokesman Christopher Stockton declined to comment Wednesday.*
*Law360 (Mar 13, 2019) – Landowners Ask High Court To Review Pipeline Access Ruling
Petition from landowner attorneys begging the Supremes to accept their case:
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