A right-leaning think tank is again wading into the debate over landowner rights and oil and gas pipelines.
The Niskanen Center filed an amicus brief Tuesday urging the U.S. Court of Appeals for the District of Columbia Circuit to side with opponents to the Mountain Valley pipeline, a natural gas project that stretches across West Virginia and Virginia.
Niskanen's brief argues that the Federal Energy Regulatory Commission's approval process for gas pipelines routinely violates landowners' constitutional rights.
"No court has ever held that property owners can be forced to wait indefinitely for the constitutionally-required hearing on the taking of their land, and this Court should not be the first," the brief said.
At issue is FERC's rehearing process. Under the Natural Gas Act, pipeline builders can use the power of eminent domain to take property for pipeline construction as soon as they receive a certificate from FERC. Any challenges to FERC's certificate go through a rehearing process that often stretches out for months or even a year.
Project opponents generally cannot go to court to challenge a certificate until that rehearing process concludes. But extensive pipeline construction typically moves forward in the meantime (Energywire, Sept. 13, 2017).
Niskanen's brief notes that the Supreme Court has repeatedly ruled that property owners are entitled to a hearing before or, in some cases, promptly after property is taken.
"The due process issue in this case arises because the hearing that results in a taking is held before an administrative agency that cannot adjudicate the property owners' constitutional claims, but the agency then indefinitely delays a judicial hearing of those claims," Niskanen attorney David Bookbinder wrote.
Bookbinder, formerly chief climate counsel for the Sierra Club, told E&E News the libertarian Niskanen Center is taking up the cause because "the odds are stacked against landowners."
"There are real serious legal questions here as to whether or not pipelines are a 'public use' such that they are entitled to eminent domain," he said.
Niskanen is working on the pipeline issue in a variety of venues.
The group also filed an amicus brief in state-level litigation in Iowa over the use of eminent domain for the Dakota Access oil pipeline. That case was argued yesterday in the Iowa Supreme Court.
In October, it is bringing on a new staff attorney to focus on pipelines and property rights. Niskanen plans to increase its friend-of-the-court filings and will begin representing landowners in pipeline-related litigation.
To date, the think tank has represented plaintiffs in only one case: a lawsuit from Colorado municipalities seeking to hold oil and gas companies accountable for their products' contribution to climate change.
Niskanen has also been looking for allies on Capitol Hill. The group held a briefing with other property rights advocates last week to explain landowner concerns to Hill staffers and others.
The think tank also hired a lobbyist this year to shop around a bill that would reform parts of FERC's process (Energywire, Feb. 14).