Construction of an interstate natural gas pipeline cannot begin until the Federal Energy Regulatory Commission (FERC) acts on a rehearing request, the commission decided June 9.
FERC’s new policy, issued as Order 871 under authority of the Natural Gas Act, is a step to accommodate the concerns of landowners, Chairman Neil Chatterjee said.
“The commission has undertaken a number of initiatives to improve affected landowners’ access to a fair and transparent process and today’s effort is another important step forward,” Chatterjee said.
A rehearing request can be handled in 30 days, but FERC sometimes needs more time, and in such instances the commission issues “tolling orders” that grant more months or even years to allow for consideration of a rehearing request. During that time, current policy allows a developer to use eminent domain proceedings to gain access to land and start construction.
The new policy, to go into effect 30 days after publication in the Federal Register, also will apply to facilities built for import or export of liquefied natural gas, though landowner concerns are more likely for pipelines because of their need, in most cases, to cross more private property.
FERC can allow projects to go ahead after rehearing, but landowners and other parties can go to court after a rehearing request fails.
Commissioner Richard Glick welcomed the step but dissented in part to express his wish that FERC had gone farther. He argued that the use of eminent domain proceedings by a developer should not be allowed to start while rehearing requests are under consideration.
The new policy delays construction but not eminent domain proceedings during rehearing procedures. “There is something fundamentally unfair about a regulatory regime that allows a private entity to start the process of condemning an individual’s land before the landowner can go to court to contest the basis for that condemnation action,” Glick wrote.
