Appeal of Issuance of Certificate of Public Convenience and Necessity
A federal condemnation proceeding has been instituted. An oil and gas company wants to put a natural gas pipeline on your property or near you. It seeks a certificate of public convenience and necessity from the Federal Energy Regulatory Commission (“FERC”). FERC grants the certificate. This allows the oil and gas company to construct, operate and maintain the natural gas pipeline. You do not want the pipeline. Can you do anything now that the certificate has been granted? If so, what can be done?
Under the Natural Gas Act (“NGA”), 15 U.S.C. §§ 717-717z, FERC has the power to issue “certificates of public convenience and necessity” authorizing private developers to construct, operate and maintain interstate natural gas pipeline projects. See 50 U.S.C. § 717f(c). Before FERC can grant such a certificate, however, it must, in most circumstances, set the matter for a hearing and provide reasonable notice to the interested parties. Id. § 717f(c)(1)(B). If FERC ultimately issues the certificate following the requisite hearing, any aggrieved person may seek judicial review of its decision – either in the Court of Appeals for the District of Columbia Circuit or the court of appeals for the circuit wherein the natural gas company is located or has its principal place of business. Id. § 717r(b). The statute provides that the chosen court of appeals then has “exclusive” jurisdiction” to affirm, modify, or set aside “FERC’s order.” Id. § 717r(b), (d)(1). Prior to seeking review in the relevant court of appeals, however, the aggrieved party must, within thirty days of the issuance of the certificate, apply for a rehearing before FERC. Id. § 717r(a). Anyone who fails to first a seek rehearing before FERC is statutorily barred from later seeking judicial review.
Once FERC has issued a certificate to a developer, the certificate holder has the ability to acquire “the necessary right-of-way to construct, operate and maintain a pipeline or pipelines” from unwilling landowners by eminent domain. Id. § 717f(h). As such, any party who is “aggrieved” by a FERC certificate may seek redress by petitioning the federal court of appeals, which would have “exclusive jurisdiction” to affirm, modify, or set aside the certificate, providing that the party first seeks a rehearing before FERC. Id. § 717r(a)-(d); Id. § 717r(b) (“Any party to a proceeding under this Act aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the court of appeals in the United States . . . by filling in such court, within sixty days after the order of the Commission upon application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part.”)
Accordingly, if you are an aggrieved party, and FERC has issued a certificate of public convenience and necessity, you must first seek a rehearing before FERC. If you do not do so, the court of appeals will not have jurisdiction to hear your appeal. In addition, once FERC has ruled on your petition for a rehearing and if you have received an adverse decision, you must not seek review in the federal district court. If you do so, your appeal will be dismissed as the federal district court does not have subject matter jurisdiction to hear your appeal. You will not then be able to contest FERC’s issuance of the certificate. See Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, 897 F.3d 187 (3rd Cir. 2018). The appeal must be taken to either the Court of Appeals for the District of Columbia Circuit or the circuit wherein the natural gas company is located or has its principal place of business. See 15 U.S.C. § 717r(b). If an oil and gas company or an oil and gas pipeline company seeks a certificate of public convenience and necessity from FERC to put a pipeline through your property or through property near you, you should retain an oil and gas attorney to help you through the process. We can help you.
For a fuller discussion of federal pipeline condemnation or eminent domain procedures, read “Federal or FERC Pipeline Condemnation or Eminent Domain.”