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Berkley v. Mountain Valley Pipeline, LLC

United States Court of Appeals, Fourth Circuit

July 25, 2018

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,
v.
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

          Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Elizabeth Kay Dillon, District Judge. (7:17-cv-00357-EKD)

         ARGUED:

          Justin Michael Lugar, GENTRY LOCKE, Roanoke, Virginia, for Appellants

          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.

         ON BRIEF:

          Cynthia M. Kinser, Monica T. Monday, GENTRY LOCKE, Roanoke, Virginia, for Appellants.

          James 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 Pipeline, LLC.

          Before GREGORY, Chief Judge, and WYNN, and THACKER, Circuit Judges.

          WYNN, CIRCUIT JUDGE:

         Plaintiffs[1] 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 affirm.

         I.

         A.

         This 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 (transferring jurisdiction).

         Under 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).

         Issuing 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. § 717f(h).

         Under 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. ยง 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 ...


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