{ Banner Image }
Search this blog

Subscribe for updates
RSSSubscribe to this blog's feed
TwitterFollow us on Twitter

Recent Posts

Blog editor

Blog Contributors

Archives

Showing 9 posts in Condemnation.

US Supreme Court Holds Pipeline Companies May Exercise Federal Eminent Domain to Acquire State Land Under Natural Gas Act
Posted on July 1, 2021

On Tuesday, June 29, 2021, the United States Supreme Court reversed the Third Circuit and held that Section 717f(h) of the Natural Gas Act authorizes Federal Energy Regulatory Commission (FERC) certificate holders to “condemn all necessary rights-of-way, including land in which the State holds an interest.” See PennEast Pipeline Co., LLC v. New Jersey, Slip Op. No. 19-1039, (June 29, 2021). This holding is consistent with history and precedent regarding the superior power of federal eminent domain. Read More »

New York Court of Appeals Reinstates Finding That A Certificate of Public Convenience and Necessity Provides an Exemption from Public Review
Posted on July 26, 2020 by: Shoshana (Suzanne Ilene) Schiller

Content for this post was provided by Isabel Teuton, a MGKF summer associate.

In National Fuel Gas Supply Corp. v. Schueckler, 2020 WL 3453939 (N.Y. June 25, 2020),the State of New York Court of Appeals held that the issuance of a certificate of convenience and necessity by the Federal Energy Regulatory Commission (FERC) under the Natural Gas Act (NGA) exempted the holder of the certificate from complying with the public notice and hearing requirements of New York’s Eminent Domain Procedure Law (EDPL) even where the certificate holder had not yet met other conditions attached to the certificate. The Court reasoned that since FERC placed no condition on the vested eminent domain power granted with the certificate and had completed its mandated analysis of the pipeline’s effect on the public interest, there was a valid exemption from further review under EDPL 206(A), thus permitting the condemnation to move forward. Read More »

Pennsylvania Commonwealth Court Affirms that De Facto Takings Must be Shown to Have Been Result of Deliberate and Purposeful Action
Posted on July 6, 2020

This Post was authored by Lisa Maeyer, a MGKF summer associate. 

On June 8, 2020, the Commonwealth Court of Pennsylvania affirmed a trial court’s holding that flooding from sewage overflows not resulting from intentional activity on the part of a sanitary authority did not constitute a de facto taking of a landowner’s affected property. In the Matter of: Condemnation by the Franklin Twp. Sewage Auth., No. 1237 C.D. 2019, 2020 WL 3039070 (Pa. Cmwlth. June 8, 2020). In particular, the Court held that because the sewage overflows resulted from the age of the system and infiltration and inflows not caused by any actions of the Franklin Township Municipal Sanitary Authority (the “Authority”), the lower court properly sustained preliminary objections to Plaintiff William Ott’s petition seeking compensation for a de facto taking of his property. Read More »

Third Circuit Holds That “Stigma Damages” for Pipeline Projects Must be Supported by Objective, Reliable Evidence
Posted on February 14, 2020

They say stigmas are social constructs. In court, however, they must be based on relevant and objective evidence, so says the Court of Appeals for the Third Circuit in a precedential opinion involving the amount of compensation owed to private landowners for easements over their properties to allow the installation of an underground pipeline. In UGI Sunbury LLC v. A Permanent Easement for 2.4645 Acres, Nos. 18-3126, 18-3127 (Feb. 11, 2020), the appellant UGI Sunbury, LLC (UGI) sought vacatur of a decision from the District Court of the Middle District of Pennsylvania in a condemnation proceeding under the Natural Gas Act, which based the compensation awarded in part on a claim that the public perception of natural gas pipelines on or near real property will permanently reduce the value of the property due to the stigma that the property is “damaged goods.” While the Third Circuit did not opine on the validity of the theory in general, it did find that the expert testimony upon which the award was based utterly failed to meet the requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and thus should not have been admitted nor relied upon.  Read More »

Third Circuit Holds That Private Companies Cannot Condemn State-Owned Property Under The National Gas Act
Posted on September 17, 2019

On September 10, the Third Circuit held that while the National Gas Act (NGA) delegates the federal government’s power of eminent domain to private gas companies, it does not necessarily delegate the federal government’s exemption from state sovereign immunity. In re: PennEast Pipeline Company, LLC, No. 19-1191 (3d Cir. 2019). As a result, private entities acting under the NGA cannot condemn state-owned property absent action by an accountable federal official. Read More »

Third Circuit Holds State Law Determines Just Compensation For Takings By Natural Gas Companies
Posted on August 15, 2019

Last month in a 2-1 split, the Third Circuit held that state, not federal, law determined how much a landowner was entitled to as just compensation in condemnation proceedings brought by private entities under the Natural Gas Act of 1938. Tennessee Gas Pipeline Co., LLC v. Permanent Easement for 7.053 Acres, No. 17-3700 (3d Cir. July 23, 2019). The precedential decision will force natural gas companies to account for differences in state law in negotiations with landowners over what constitutes “just compensation” for a taking.   Read More »

Third Circuit Rules on Jurisdiction and the Environmental Rights Amendment
Posted on September 5, 2018

On September 4, 2018, the U.S. Court of Appeals for the Third Circuit determined that the Third Circuit, and not the Pennsylvania Environmental Hearing Board (“EHB”), has jurisdiction to review Water Quality Certifications issued by the Pennsylvania Department of Environmental Protection (“DEP”) for interstate natural gas projects governed by the Natural Gas Act. See Del. Riverkeeper Network, et al. v. Dep’t of Envtl. Prot., No. 16-221, 2018 WL 4201626 (3d Cir. Sept. 4, 2018). The Third Circuit also held that DEP does not violate Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) by issuing a Water Quality Certification that is conditioned on obtaining substantive permits. Read More »

Eighth Circuit Flushes All Challenges to Pipeline Condemnation
Posted on April 1, 2014 by: Shoshana (Suzanne Ilene) Schiller

Landowners who find themselves in the path of an oil or gas pipeline quickly learn that their rights are limited, and that a pipeline company granted a Federal Energy Regulatory Commission (FERC) Certificate of Public Convenience and Necessity hold most of the cards.  Thus, the recent decision in Alliance Pipeline, L.P. v. 4,360 Acres of Land, No. 13-1003 (8th Cir. Mar. 24, 2014), which in a mere 10 pages washed aside the landowners challenges Alliance Pipeline’s condemnation action, comes as no surprise.    Read More »

Owners Who Purchased Property Prior To September 1993 Liable Under NJ Spill Act Unless Due Diligence Was Conducted At Time Of Purchase
Posted on November 2, 2012 by: Shoshana (Suzanne Ilene) Schiller

In July, 2001, the New Jersey Superior Court decided the case of White Oak Funding, Inc. v. Winning, 341 N.J. Super. 294 (App.Div.), cert. denied. 170 N.J. 209 (2001), holding that an owner of contaminated property purchased before September 14, 1993, was not liable for historic contamination that the owner did not contribute to.  Only a week later, amendments to New Jersey’s Industrial Site Recovery Act (“ISRA”) became effective.  Among other things, those amendments provided that owners who acquired property prior to September 14, 1993 would not be liable for clean-up costs if “at the time of acquisition, [the purchaser undertook] all appropriate inquiry on the previous ownership and uses of the property based upon generally accepted good and customary standards.”  N.J.S.A. 58:10-23.11g(d)(5).  So, did this amendment abrogate the holding in White Oak?   A decade later, on October 29, 2012, the New Jersey Superior Court has said that it did. Read More »