ORUS ASHBY BERKLEY; JAMES T. CHANDLER; KATHY E. CHANDLER; CONSTANTINE THEODORE CHLEPAS; PATTI LEE CHLEPAS; ROGER D. CRABTREE; REBECCA H. CRABTREE; GEORGE LEE JONES; ROBERT WAYNE MORGAN; PATRICIA ANN MORGAN; MARGARET MCGRAW SLAYTON LIVING TRUST; THOMAS TRIPLETT; BONNIE B. TRIPLETT, Plaintiffs - Appellants,
MOUNTAIN VALLEY PIPELINE, LLC; FEDERAL ENERGY REGULATORY COMMISSION; NEIL CHATTERJEE, in his official capacity as Acting Chairman of the Federal Energy Regulatory Commission, Defendants - Appellees. and DAWN E. CISEK; MARTIN CISEK; EDITH FERN ECHOLS; ESTIAL E. ECHOLS, JR., Plaintiffs,
Argued: May 10, 2018
from the United States District Court for the Western
District of Virginia, at Roanoke. Elizabeth Kay Dillon,
District Judge. (7:17-cv-00357-EKD)
Michael Lugar, GENTRY LOCKE, Roanoke, Virginia, for
Susanna Y. Chu, FEDERAL ENERGY REGULATORY COMMISSION,
Washington, D.C., for Appellees Federal Energy Regulatory
Commission and Neil Chatterjee. Wade Wallihan Massie, PENN,
STUART & ESKRIDGE, Abingdon, Virginia, for Appellee
Mountain Valley Pipeline, LLC.
Cynthia M. Kinser, Monica T. Monday, GENTRY LOCKE, Roanoke,
Virginia, for Appellants.
P. Danly, General Counsel, Robert H. Solomon, Solicitor,
FEDERAL ENERGY REGULATORY COMMISSION, Washington, D.C., for
Appellees Federal Energy Regulatory Commission and Neil
Chatterjee. Mark E. Frye, Seth M. Land, PENN, STUART &
ESKRIDGE, Abingdon, Virginia, for Appellee Mountain Valley
GREGORY, Chief Judge, and WYNN, and THACKER, Circuit Judges.
Plaintiffs are landowners along the
path of a proposed natural gas pipeline. They brought this
action against the Mountain Valley Pipeline, LLC, the Federal
Energy Regulatory Commission, and Neil Chatterjee, in his
official capacity as Acting Chairman of the Federal Energy
Regulatory Commission (hereinafter collectively referred to
as "Defendants") challenging the constitutionality
of various provisions of the Natural Gas Act, 15 U.S.C.
§ 717 et seq. But the district court, without
reaching the merits of Plaintiffs' challenges, dismissed
their action for lack of subject-matter jurisdiction on the
grounds that their claims must instead be brought through the
agency review process laid out in the Natural Gas Act. We
case involves a complex administrative review framework that
warrants some introduction. In 1977, Congress transferred
much of the authority from the now-defunct Federal Power
Commission to the new Federal Energy Regulatory Commission
("FERC," or "the Commission").
See 42 U.S.C. §§ 7171-72. Among the
transferred authorities was regulation of the natural gas
industry, as outlined in the Natural Gas Act, 15 U.S.C.
§ 717 et seq. See also 42 U.S.C. § 7172
the Natural Gas Act, FERC is responsible for vetting and
approving construction of new interstate natural gas
pipelines and expansions of existing pipelines. See
15 U.S.C. § 717f. To approve such construction,
FERC must find that the construction "is or will be
required by the present or future public convenience and
necessity." Id. § 717f(e). Once FERC makes
that required finding and issues a "Certificate of
public convenience and necessity"
("Certificate"), a pipeline company can begin
construction. Id. § 717f(c).
such a Certificate conveys and automatically transfers the
power of eminent domain to the Certificate holder. See
id. § 717f(h). Thus, FERC does not have discretion
to withhold eminent domain power once it grants a
Certificate. See Midcoast Interstate Transmission, Inc.
v. FERC, 198 F.3d 960, 973 (D.C. Cir. 2000). With the
transferred power of eminent domain, a Certificate holder can
then initiate condemnation proceedings in the appropriate
U.S. district court or state court. See 15 U.S.C.
the Natural Gas Act, an aggrieved party who seeks review from
the issuance of a Certificate must first file for rehearing
before FERC. See id. § 717r. If FERC either
declines to rehear the matter or issues a final order upon
rehearing the matter, the aggrieved party can file a petition
for review in the appropriate court of appeals, which has
"exclusive" jurisdiction "to ...