The Nickel Report

Last week, Annie Kuster (D-NH) along with four other Democratic members of Congress introduced a proposed Natural Gas Act (NGA) amendment aimed at banning the use of eminent domain for construction or expansion of interstate natural gas pipeline infrastructure through lands subject to conservation restrictions in favor of, or owned by, non-profit entities or local governments. The proposed legislation is “The Protecting Our Conserved Lands Act of 2019.”

Over the last year or so, anti-pipeline forces have increasingly used “tree sitting” to obstruct natural gas infrastructure projects. The tactic involves individuals who climb trees slated for removal in a proposed pipeline project and stay there—sometimes for months and often aided by family, friends or others—forcing project developers to take various countermeasures.

Earlier this month a Virginia federal district judge rejected a novel effort by Mountain Valley Pipeline, LLC (MVP) to join certain unnamed tree sitters (“Tree Sitter 1” and “Tree Sitter 2”) as defendants in a pending Natural Gas Act (NGA) eminent domain action to condemn easements over land in southwestern Virginia for construction of the Mountain Valley Pipeline. In addition to interfering with its use of the easements being condemned, MVP alleged that the “tree sitters” or their supporters had assaulted a security officer who was part of a tree clearing crew on the project. Notably, though it declined to join the “tree sitters” as parties, the court observed that MVP still had other available remedies against them.

On July 10, 2018, a panel of the United States Court of Appeals for the DC Circuit rejected an environmental group’s claim that FERC’s funding mechanism results in unconstitutional bias in favor of the pipeline industry. The court also rebuffed a due process attack on the Commission’s use of “tolling orders” to avoid automatic denial of rehearing requests after 30 days. The decision is noteworthy as it represents the latest rejection of similar constitutional challenges to FERC’s operations and practices that pipeline opponents have been raising with increasing ...

On January 31, 2018, in proceedings to condemn easements for the Mountain Valley Pipeline project, the US District Court for the Western District of Virginia ruled that the pipeline company’s preliminary injunction motions for pretrial possession of the easements would be granted only if it appraised each of the nearly 300 properties at issue.

Read the full report on PipelineLaw.com.