In March a group of Pennsylvania landowners from Lancaster County asked the U.S. Supreme Court to hear a case in which they say they’ve been screwed over by Atlantic Sunrise Pipeline, that the pipeline should not have had the right to use eminent domain to build the pipeline before the matter of compensation was fully adjudicated (see PA Landowners Beg US Supreme Court to Hear Atlantic Sunrise Case). Williams, via their Transco subsidiary, has just responded and asked the Supremes to toss the case entirely.
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, asked 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.
Transcontinental Gas Pipe Line Co. LLC has argued its effort to condemn property in Pennsylvania for a natural gas pipeline that had been greenlighted by the Federal Energy Regulatory Commission was run-of-the-mill and did not need to be reviewed by the U.S. Supreme Court.
The pipeline company said Wednesday it was not given access to land to build the now in-service Atlantic Sunrise pipeline too soon, but instead had correctly exercised its authority given to it under the Natural Gas Act after the Federal Energy Regulatory Commission provided the company with a certificate authorizing construction.
This was not a special case, and the Supreme Court would be wasting its time by examining a condemnation that followed the proper procedure, the company said.
“The petitioners had an opportunity to answer the complaint, the motions for partial summary judgment and the omnibus motion for preliminary injunction and had an opportunity to present evidence at two days of hearings, and the district court then exercised its right to grant equitable relief to Transco,” the brief said. “Petitioners fail to identify any precedent of this court which is violated by the process followed by Transco.”
The Lancaster County residents asked the high court to take the case in March, arguing that a correct interpretation of the NGA would have prevented Transco from using their land for its pipeline 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. Instead, a district judge in 2017 granted Transco access before the condemnation proceedings were complete and over the property owners’ objections — an outcome upheld by the Third Circuit.
Congress never intended to allow private companies to gain access to land through eminent domain on an expedited basis before paying the property owner, which still hasn’t occurred, according to the landowners’ March petition.
But there is no evidence that the condemnations were somehow “expedited,” according to Transco. The NGA provided eminent domain power to the company when it received the certificate from FERC. That certificate allowed for “standard condemnation power, not ‘quick take.’” And that is the process that occurred.
“While petitioners claim that the decision below ‘deviates sharply’ from this court’s precedents, they fail to identify any precedent involving condemnation which was violated by the process followed by Transco in these cases,” the company’s opposition brief said.
The Third Circuit found that Transco had satisfied the requirements that would allow courts to grant eminent domain power under the NGA even without the district court having reached a final judgment.
Transco had already done the legwork to establish its condemnation rights under the NGA, the appeals panel said, adding that the seizure of the parcels was not a “quick take.”
“Here, unlike in a ‘quick take’ action, Transcontinental does not yet have title but will receive it once final compensation is determined and paid. Unlike in a ‘quick take’ action, the landowners had the opportunity to brief the summary judgment motions and participate in the preliminary injunction hearing,” the appeals court panel said. The company said in its filing this was the right interpretation.
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.
Robert McNamara, an Institute for Justice attorney for the property owners, said the company did not have the authority to take the land.
“These condemnations are filed very frequently and ultimately the importance of this case is because this is so widespread. Circuit after circuit has weighed in on this practice and signed off on it even though it is dramatically out of step with how every other federal eminent domain that I’m familiar with goes,” McNamara told Law360 on Thursday. “This really is the moment — if the court is going to enforce what it has told us about how eminent domain works — for this court to take this case and put a stop to it once and for all.”*
*Law360 (Apr 18, 2019) – Transco Asks High Court To Ignore Pipeline Access Case
Copy of Transco’s filing with the Supreme Court:
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