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After Atlantic Sunrise pipeline decision, landowners plan full court appeal

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After Atlantic Sunrise pipeline decision, landowners plan full court appeal

Bolstered by a judge's criticism of the Federal Energy Regulatory Commission, landowners plan to ask the full U.S. Appeals Court for the District of Columbia Circuit to examine whether current FERC practices deprive property owners of a fair process in natural gas pipeline cases.

The litigation has implications for the timing of gas projects because FERC often allows construction to begin on a pipeline before landowners are able to challenge the commission's project approval in court.

On Aug. 2, a three-judge panel of the D.C. Circuit upheld FERC orders approving Transcontinental Gas Pipe Line Co. LLC's 1.7-Bcf/d Atlantic Sunrise gas transportation project, which included about 200 miles of new pipeline. The panel said it was not empowered to overturn D.C. Circuit precedent upholding FERC's practice of tolling decisions on rehearing.

But Judge Patricia Millett, in a concurring opinion, slammed FERC's practice of putting off final decisions on landowners' rehearing orders for months. According to Millett, the difficulty for landowners is that until FERC decides on rehearing, the commission's certificate orders for pipelines are considered nonfinal for purposes of judicial review, jurisdictionally locking homeowners out of court. But the certificate orders are "final enough" for pipeline companies to prevail in separate eminent domain action and acquire needed easements over the property owners' land. The judge said the agency's approach put people in "administrative limbo" while construction proceeds.

Millett's opinion appeared to lay out possible legal arguments for an appeal to the full D.C. Circuit. "A scheme that walls homeowners off from timely judicial review of the commission's public-use determination, while allowing eminent domain and functionally irreversible construction to go forward, is in substantial tension with statutory text and runs roughshod over basic principles of fair process," she wrote.

Siobhan Cole, a partner with the law firm White and Williams LLP who represented landowners in the case, said her clients now plan to file a petition for rehearing by the full court "basically following Millett's concurrence in the case." They would seek to overcome a procedural hurdle in which a three-judge panel is unable to overturn contrary case law in decisions by a panel of the same court, she said.

"What Judge Millett was saying is that although the [panel's] hands were tied by precedent, that at least in her opinion the procedure that has evolved here between FERC and the way that private companies pursue these cases is contrary to the express language of the Natural Gas Act, and it's 'procedurally improper,'" Cole said.

Cole noted that the court withheld issuance of its mandate until seven days after disposition of a timely petition for rehearing or rehearing en banc.

Pipeline developer Williams Cos. Inc. said its subsidiary Transco placed the Atlantic Sunrise project into service in October 2018. The new infrastructure is providing millions of consumers "direct access to one of the most abundant, cost-effective natural gas supply sources in the country," Williams said.

Throughout the regulatory process, "Williams collaborated with permitting agencies, landowners and communities to minimize environmental and stakeholder impacts, adopting more than 400 modifications to more than 50% of the original pipeline route," the company said.

Maya Weber is a reporter with S&P Global Platts. S&P Global Market Intelligence and S&P Global Platts are owned by S&P Global Inc.