Mountain Valley Pipeline, LLC v. 6.56 Acres of Land

915 F.3d 197
Court of Appeals for the Fourth Circuit·Decided February 5, 2019·No. No. 18-1159; No. 18-1165; No. 18-1175; No. 18-1181; No. 18-1187; No. 18-1242; No. 18-1300·Published·Cited by 87 cases

Opinion

PAMELA HARRIS, Circuit Judge:

In October 2017, the Federal Energy Regulatory Commission approved the application of Mountain Valley Pipeline, LLC, to construct a natural gas pipeline through West Virginia and Virginia. Building and maintaining that pipeline would require access to thousands of private properties, under which the pipeline would be buried. Accordingly, the Commission's approval permits Mountain Valley to obtain *209easements along the pipeline route through eminent domain where it cannot do so through private agreements.

Mountain Valley successfully negotiated easements allowing access onto the land of most of the affected landowners. To obtain the rest of the required easements, it initiated condemnation proceedings. Three district courts granted partial summary judgment to Mountain Valley, recognizing its right to take the easements. And because the eminent domain proceedings - including multiple trials to determine the amount of just compensation for each easement - would take years to complete, the courts also issued preliminary injunctions granting Mountain Valley immediate possession of the easements, so that it could begin construction without delay. To ensure that the landowners would be compensated fully, the district courts required Mountain Valley to post deposits, which the landowners could draw upon while the proceedings continued.

On appeal, the landowners do not dispute the grant of partial summary judgment to Mountain Valley, conceding that Mountain Valley has the substantive right to take easements by eminent domain. Thus, the only question before us is whether Mountain Valley may gain access to those easements now, or whether it must wait to start construction until the district courts can sort out just compensation. We hold that the district courts did not abuse their discretion in allowing Mountain Valley immediate possession, and therefore affirm the injunction orders.

I.

A.

In October 2015, Mountain Valley applied to the Federal Energy Regulatory Commission ("FERC" or the "Commission") for authorization to construct a 303.5-mile-long, 42-inch-diameter pipeline from Wetzel County, West Virginia, to Pittsylvania County, Virginia. When complete, the pipeline would transport up to two million dekatherms of natural gas per day, enabling shippers to access markets in the Northeast, Mid-Atlantic, and Southeast. Close to 300 parties, including residents and environmental groups, intervened in the Commission's process, and FERC received more than 2,000 written and oral comments during its review.

On October 13, 2017, the Commission issued a "certificate of public convenience and necessity" (the "Certificate") under the Natural Gas Act, 15 U.S.C. § 717f(e). The Commission found that the proposed pipeline is in the public interest, would meet a market demand, and is "environmentally acceptable." J.A. 2853. The Certificate authorized Mountain Valley to construct and operate the proposed pipeline, contingent on numerous conditions. Most significant for this appeal, the Certificate requires that the pipeline be complete and available for service within three years - that is, by October 2020.

Under the Natural Gas Act, legal challenges to a Commission certificate and its underlying public-interest determination may proceed only through specified routes. A party wishing to contest a certificate first must apply for rehearing before the Commission. 15 U.S.C. § 717r(a). After that, review may be had in the United States Court of Appeals for the District of Columbia or another federal circuit court with jurisdiction. Id. § 717r(b). Here, though numerous parties have challenged the Certificate, their efforts thus far have been unsuccessful. In November 2017, various intervenors applied to the Commission for rehearing and a stay of the Certificate, which ultimately was denied. While that request was pending, at least three petitions for review and for stay pending review *210were filed with the D.C. Circuit, which denied the stay requests.1 Appalachian Voices v. Fed. Energy Reg. Comm'n , No. 17-1271, 2018 WL 774322, 2018 U.S. App. LEXIS 2924 (D.C. Cir. Feb. 2, 2018). Importantly, the Certificate remains effective while these legal challenges proceed. See 15 U.S.C. § 717r(c) (neither the filing of an application for rehearing nor commencement of judicial proceedings stays a FERC order).

By late November 2017, within weeks of obtaining the Certificate, Mountain Valley had entered into three master construction services agreements to lay the pipeline. Mountain Valley sought to commence construction by February 2018 with completion anticipated for December 2018, well before the Commission's deadline of October 2020. Because tree-clearing in areas with protected bats must be completed during the winter season (between mid-November and March), even a brief delay would have postponed the project's start date until November 2018. However, Mountain Valley had developed a schedule to proceed in the event of that contingency, under which it still expected to meet the Commission's in-service deadline.

Mountain Valley acquired rights-of-way to portions of approximately 85 percent of the properties along the approved pipeline route in anticipation of construction. These include both permanent easements along the pipeline route, allowing its pipeline to lie underneath the land, and temporary easements for construction. However, Mountain Valley was unable to reach agreement with the hundreds of landowners who are now parties to this litigation (the "Landowners"2 ).

B.

Under the Natural Gas Act, Mountain Valley's certificate entitles it to exercise the power of eminent domain to obtain any rights-of-way it cannot otherwise acquire, as necessary to construct, operate, or maintain the planned pipeline. See 15 U.S.C. § 717f(h). In other words, where Mountain Valley is unable to negotiate an easement with a landowner along the pipeline route, it may obtain a condemnation order granting an easement for a fair price set by the court.

Between receiving its Certificate in October 2017 and early December of that year, Mountain Valley commenced proceedings in three different district courts to condemn a 50-foot-wide path along the pipeline route in each jurisdiction. Within days of commencing each proceeding, Mountain Valley moved for partial summary judgment on its substantive right to take the easements by eminent domain. In the same motions, the company sought preliminary injunctions granting immediate access and possession during the pendency of the proceedings, in order to prevent construction delays.

Free access — add to your briefcase to read the full text and ask questions with AI

Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, 915 F.3d 197 (4th Cir. 2019).

915 F.3d 197 (Mountain Valley Pipeline, LLC v. 6.56 Acres of Land) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Vachon v. Scott
D. Maryland, 2025
Vyas v. Noem
S.D. West Virginia, 2025
Doe v. Noem
W.D. Virginia, 2025
Talbott v. Trump
District of Columbia, 2025