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Federal judge adds hurdle for Columbia pipeline land condemnation

Highlights

Maryland raised sovereign immunity question

MVP, in separate case, faces new stay request

Washington — A federal district court set back plans by Columbia Gas Transmission to promptly condemn Maryland state lands that were part of the route for a 3.4 mile, 47,500 Dt/d interstate natural gas pipeline project.

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The case may be relevant to other interstate gas projects because some states have begun raising sovereign immunity claims to prevent pipelines from crossing state lands.

In this case, Maryland Governor Larry Hogan and the state Board of Public Works in January voted to deny an easement that would allow Columbia's Eastern Panhandle Expansion project to cross the Western Maryland Rail Trail, near the Potomac River, as part of the pipeline's short route from Pennsylvania to a West Virginia utility.

The project was approved by the Federal Energy Regulatory Commission in July 2018. With that key authorization, Columbia filed a condemnation complaint in federal court in Maryland and sought a preliminary injunction to gain access to property.

But the Maryland Department of Natural Resources sought to dismiss the complaint saying the court lacked jurisdiction because the state had not waived its sovereign immunity and because there was no congressional abrogation of that immunity.

JUDGE'S RULING

At a hearing Wednesday, Judge George Russell of the US District Court for the District of Maryland ruled orally that Columbia failed to establish why it was entitled to a preliminary injunction, and he concluded that the state's 11th Amendment immunity bars Columbia Gas' complaint in condemnation.

"As a result, the court determined it did not have subject matter jurisdiction over this case and dismissed the complaint," Russell explained in a brief order August 22 (Columbia Gas Transmission v. .12 Acres of Land, et al., 1:19-cv-01444).

Gary Kruse of LawIQ said the implication of the ruling is primarily procedural.

"All this case stands for right now is that the condemnation action must be filed in state court," he said. It would be more consequential if the court had held that the condemnation rights granted under the Natural Gas Act did not extend to state lands, he said. "[W]e are far from that right now."

It is not yet clear whether Columbia will head the 4th US Circuit Court of Appeals to challenge the order, or take its condemnation claim to state court.

Tim Wright, a spokesman for Columbia parent TC Energy, said the company will be evaluating its options. "We are committed to moving forward with this project to ensure that we can safely and reliably deliver a vital energy source to help power a region's homes, businesses and economy."

Environmental groups welcomed the court action. "The takeaway is that for three years several regional environmental organizations in conjunction with citizens of the watershed and local elected leaders banded together and showed their concern for this pipeline that has no benefit for state of Maryland," said Brent Walls of Upper Potomac Waterkeeper. The pipeline would cross under the Potomac River and the C&O Canal, and connect to the 23-mile Mountaineer Project in West Virginia.

MVP LITIGATION

Separately, the 303-mile, 2 Bcf/d Mountain Valley Pipeline continued to face pressure from environmental litigants. A coalition of groups, including Wild Virginia, Wednesday asked the 4th Circuit for a stay pending their litigation challenging two Fish and Wildlife Service authorizations for the MVP route related to the endangered species act -- the biological opinion and incidental take statement.

Of note, MVP earlier in the month announced a voluntary suspension of certain new construction activities several days after the litigation was filed.

But environmentalists argued in their request that the voluntary stay was too narrowly drawn and reliant upon the same document that was being challenged in court. The groups contended the construction continuing despite the voluntary stay risks harm from sedimentation to endangered logperch, and from noise dust and lighting to the Indiana bat.

A response is due August 29 from MVP, along with the Department of Interior and FWS (Wild Virginia v. Department of Interior, 19-1866).

-- Maya Weber, maya.weber@spglobal.com

-- Edited by Joe Fisher, newsdesk@spglobal.com