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On October 8, APGA filed a Motion to Intervene with the Federal Energy Regulatory Commission (FERC) in response to a request for a petition for declaratory order filed by PennEast Pipeline Company, LLC in which they are seeking action requesting that FERC issue an order interpreting the Natural Gas Act’s eminent domain authority. Specifically, they are requesting FERC to clarify that a certificate holder’s authority to “condemn the necessary right-of-way to construct, operate, and maintain a [natural gas] pipeline” and the “necessary land or other property, in addition to right-of-way, for the location of compressor stations [and other associated equipment],” applies to property in which a state holds an interest. The issue originated with a ruling in September by the U.S. Court of Appeals for the Third Circuit, which barred PennEast Pipeline Co from using a federal law to seize properties controlled by the state of New Jersey to build its proposed $1 billion natural gas pipeline. The court found that the Natural Gas Act does not allow companies to condemn state-controlled land in federal court because states enjoy sovereign immunity from such actions under the Eleventh Amendment of the U.S. Constitution. In other words, a pipeline certificate holder could sue a private landowner for eminent domain but not a state.

In its Motion to Intervene, APGA expresses support for PennEast’s request while also expressing concern in response to the increasing threats to the development of new energy infrastructure in the U.S. APGA also states that while APGA members do not rely upon the Natural Gas Act for the power of eminent domain, the Third Circuit Opinion adversely affects the ability of local utilities to obtain new pipeline capacity and access to natural gas supplies now and into the future. APGA also expressed concern “that this new Third Circuit Opinion will be another barrier to necessary new natural gas infrastructure—adding to those put forward by NIMBYs and extreme environmentalists attempting to shut down fossil fuel use.”

A copy of APGA’s filing is available at www.apga.org. For question on this article, please contact Dave Schryver of APGA staff by phone at 202-464-2742 or by email at dschryver@apga.org.