Petition for Writ of Certiorari — RDFS, LLC, Petitioner v. Federal Energy Regulatory Commission, et al.

Supreme Court briefJun 6, 2025

Ask Donna

What actually matters in this document.

Text

No.

IN THE

Supreme Court of the United States

RDFS, LLC,

Petitioners,

FEDERAL ENERGY REGULATORY COMMISSION, AND

COLUMBIA GAS TRANSMISSION, LLC

Respondents.

On Petition for Writ of Certiorari to the

U.S. Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Joy D. Llaguno

Counsel of Record

Phillip C. Hook

Matthew R. Miller

Gerald S. Atkins

HOOK & HOOK PLLC

430 East Oakview Dr.

Suite 101

Waynesburg, PA 15370

(724) 824-3302

jllaguno@hooklaw.com

Counsel for Petitioner

QUESTIONS PRESENTED

The Natural Gas Act (“NGA”), 15 U.S.C. § 717 et

seq., empowers the Federal Energy Regulatory

Commission (“FERC”) to issue certificates of public

convenience and necessity, which authorize certain

natural gas pipeline operations and grant the power

of eminent domain. FERC, in turn, promulgated

18 C.F.R. § 157.201 et seq., creating the “Blanket

Certificate” mechanism, which grants holders

“automatic authorization” to exercise eminent domain

for certain categories of activities “without further

Commission approval.” Id. §§ 157.203, 157.208. Here,

a private entity used its blanket certificate to

condemn property over forty years after its issuance

against a landowner who had no notice of or

opportunity to oppose the certificate. The Fourth

Circuit held without discussion that it lacked

jurisdiction, deferring to FERC on the question of

FERC’s power to promulgate the regulations which

deprive the judiciary of jurisdiction. The questions

presented are:

1. Whether a court of appeals may defer to FERC

on the threshold question of FERC’s authority to issue

blanket certificates without determining the legality

of the agency’s asserted power?

2. Whether the NGA, 15 U.S.C. § 717 et seq., and

the Constitution permit FERC to issue blanket

certificates under 18 C.F.R. § 157.201 et seq. which

never expire, are unlimited in geographic scope, and—

according to FERC—may not be challenged after the

statutory thirty-day rehearing deadline, irrespective

of future condemnations that may occur decades or

centuries after the date of the original grant?

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

The parties to the proceedings in the court of

appeals are:

1. Petitioners (Petitioner below): RDFS, LLC.

2. Respondent (Respondent below):

Energy Regulatory Commission.

Federal

3. Respondent (Intervenor below): Columbia Gas

Transmission, LLC.

Petitioner RDFS, LLC, has no parent corporation.

No publicly held company owns any interest in RDFS,

LLC.

iii

LIST OF RELATED CASES

The related proceedings within the meaning of this

Court’s Rule 14.1(b)(iii) are listed below:

•

RDFS, LLC, v. Federal Energy Regulatory

Commission, et al., No. 24-1530 (4th Cir. Jan. 8,

2025) (judgment entered).

•

Columbia Gas Transmission Corp., 187 FERC

¶ 62,027 (April 11, 2024) (administrative decision

entered).

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED ..............................

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE

STATEMENT ..........................................

LIST OF RELATED CASES ..............................

iii

TABLE OF CONTENTS ....................................

TABLE OF APPENDICES ................................

vii

TABLE OF AUTHORITIES ...............................

viii

PETITION FOR A WRIT OF CERTIORARI ....

OPINIONS BELOW ...........................................

JURISDICTION .................................................

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS

INVOLVED ..............................................

STATEMENT OF THE CASE ...........................

The Legal Framework of the NGA ....

Blanket Certificates ...........................

Relevant Facts and Procedural

History ................................................

REASONS FOR GRANTING THE PETITION ..

The Fourth Circuit Improperly Ceded

Judicial Authority to FERC ....................

Deference to FERC on the Scope of

Its Own Power Contradicts This

Court’s Clear Precedent .....................

The Decision Below Improperly

Insulates Agency Action from

Constitutional Scrutiny .....................

FERC’S Blanket Certificate Mechanism

is an Expansion of Executive Power in

Defiance of the Text of the NGA, the

Fifth Amendment, and this Court’s

Precedents ................................................

Blanket Certificates Violate Core

Principles of Due Process ...................

Blanket Certificates Invoke the

Takings Power Without

Safeguarding the Public Use

Requirement .......................................

Blanket Certificates Allow Eminent

Domain to be Exercised in

Perpetuity, Shielded from Judicial

Scrutiny ..............................................

II.

III.

The Decision Below Presents a Circuit

Split With Broad Implications for an

Expanding Nationwide Industry, Raises

Significant Constitutional Questions,

and the Issues Presented Are Likely to

Recur in the Absence of this Court’s

Review ......................................................

CONCLUSION ...................................................

vii

TABLE OF APPENDICES

Page(s)

APPENDIX A — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT, FILED

JANUARY 8, 2025 .............................................. 1a

APPENDIX B — DENIAL OF REHEARING OF

THE FEDERAL ENERGY REGULATORY

COMMISSION, FILED APRIL 11, 2024 ........... 2a

APPENDIX C — REJECTION OF REHEARING

AND DENIAL OF LATE INTERVENTION

OF THE FEDERAL ENERGY REGULATORY

COMMISSION, DATED FEBRUARY 7, 2024 ..... 3a

APPENDIX D — FINDINGS AND ORDER OF

THE FEDERAL ENERGY REGULATORY

COMMISSION, DATED JANUARY 7, 1983 ........ 6a

APPENDIX E — CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED ....... 12a

viii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Lab’ys v. Gardner,

387 U.S. 136 (1967) ........................................... 22

Alexander v. Sandoval,

532 U.S. 275 (2001) ........................................... 12

Allegheny Def. Project v. FERC,

964 F.3d 1 (D.C. Cir. 2020) ....................13, 26, 29

Allentown Mack Sales & Serv., Inc. v.

N.L.R.B.,

522 U.S. 359 (1998) ........................................... 15

Armstrong v. Manzo,

380 U.S. 545 (1965), overruled on

other grounds by Daniels v.

Williams, 474 U.S. 327 (1986) .......................... 17

Baldwin v. United States,

140 S. Ct. 690 (2020) ......................................... 30

Bowen v. Mich. Acad. of Fam. Physicians,

476 U.S. 667 (1986) ........................................... 22

Brown v. Gardner,

513 U.S. 115 (1994) ........................................... 12

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ............................................... 24

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ........................................... 22

Chicago, B. & Q. Ry. Co. v. Illinois,

200 U.S. 561 (1906) ........................................... 20

City of Cincinnati v. Vester,

281 U.S. 439 (1930) ........................................... 19

Columbia Gas Transmission, LLC v.

1.01 Acres, More or Less in Penn Twp.,

768 F.3d 300 (3d Cir. 2014) .......................... 7, 29

Columbia Gas Transmission, LLC v.

10.5068 Acres, More or Less in

York Cnty.,

No. 15-CV-0360, 2015 WL 3831181

(M.D. Pa. June 19, 2015) .................................. 29

Columbia Gas Transmission, LLC v.

RDFS, LLC, No. 23-CV-364 [ECF

No. 1] (N.D.W. Va. Dec. 19, 2023) ...................... 9

Columbia Gas Transmission, LLC v.

RDFS, LLC, No. 23-CV-364, 2024

WL 993093 (N.D.W. Va. Feb. 27, 2024)........6, 10, 24

Corner Post, Inc. v. Bd. of Governors of

Fed. Rsrv. Sys.,

144 S. Ct. 2440 (2024) ..................................24, 25

Covey v. Town of Somers,

351 U.S. 141 (1956) ........................................... 17

Dixon v. United States,

381 U.S. 68 (1965) ........................................12, 14

E. Tennessee Nat. Gas Co. v. Sage,

361 F.3d 808 (4th Cir. 2004) ............................. 29

Eychaner v. City of Chicago,

141 S. Ct. 2422 (2021) ....................................... 20

Fuentes v. Shevin,

407 U.S. 67 (1972) ............................................. 17

In re Columbia Gas Transmission Corp.,

No. CP83-76-0008 (Jan. 24, 2024) .................... 10

Kelo v. City of New London,

545 U.S. 469 (2005) ................................18, 19, 22

Koshland v. Helvering,

298 U.S. 441 (1936) ........................................... 12

Leary v. United States,

395 U.S. 6 (1969) ............................................... 12

Loper Bright Enters. v. Raimondo,

603 U.S. 392 (2024) ...................... 2, 11-15, 25, 30

Loretto v. Teleprompter Manhattan

CATV Corp.,

458 U.S. 419 (1982) ........................................... 23

Manhattan Gen. Equip. Co. v.

Comm’r of Internal Revenue,

297 U.S. 129 (1936) ........................................... 12

Marbury v. Madison,

5 U.S. 137 (1803) ............................................... 13

Mennonite Bd. of Missions v. Adams,

462 U.S. 791 (1983) ........................................... 17

Michigan v. E.P.A.,

576 U.S. 743 (2015) ........................................... 20

Miller v. Johnson,

515 U.S. 900 (1995) ........................................... 15

Mullane v. Cent. Hanover Bank & Tr. Co.,

339 U.S. 306 (1950) ........................................... 17

Nat’l R.R. Passenger Corp. v. Bos. &

Maine Corp.,

503 U.S. 407 (1992) ........................................... 20

N. Nat. Gas Co. v. Easement &

Right-of-way Across 33.523 Acres

More or Less,

No. 23-CV-1906, 2023 WL 4936163

(D. Minn. Aug. 2, 2023)..................................... 29

Parratt v. Taylor,

451 U.S. 527 (1981) ........................................... 17

Pavelich v. Nat. Gas Pipeline Co. of Am.,

No. 02 C 3374, 2003 WL 22303140

(N.D. Ill. Oct. 8, 2003) ................................... 6, 21

PennEast Pipeline Co., LLC v. New Jersey,

594 U.S. 482 (2021) ........................................... 28

Peralta v. Heights Med. Ctr., Inc.,

485 U.S. 80 (1988) ............................................. 17

RDFS, LLC v. U.S. Fed. Energy Reg.

Comm’n,

No. 24-1530 [ECF No. 3]

(4th Cir. June 10, 2024) .................................... 10

RDFS, LLC v. Fed. Energy Regul.

Comm’n,

24-1530 [ECF No. 29]

(4th Cir. Jan. 8, 2025) .................. 7, 11, 13, 26, 29

Sabal Trail Transmission, LLC v. +/0.4 Acres of Land in Marion Cnty.,

No. 16-CV-210, 2016 WL 2997672

(M.D. Fla. May 25, 2016) .................................. 29

xii

Seven Cnty. Infrastructure Coal. v.

Eagle Cnty.,

--- S.Ct.--- No. 23-975, 2025 WL

1520964 (U.S. May 29, 2025)............................ 12

Thompson v. Consolidated Gas Corp.,

300 U.S. 55 (1937) ............................................. 18

United States v. Larionoff,

431 U.S. 864 (1977) ........................................... 12

Util. Air Regul. Grp. v. E.P.A.,

573 U.S. 302 (2014) ........................................... 25

W. River Bridge Co. v. Dix,

47 U.S. 507 (1848) ............................................. 19

WBI Energy Transmission, Inc. v.

Easement and Right-of-Way

Across Twp. 2 S.,

No. 14-CV-130, 2017 WL 532281

(D. Mont. Feb. 8, 2017) ..................................... 29

Walker v. City of Hutchinson,

352 U.S. 112 (1956) ........................................... 17

Constitutional Provisions

U.S. Const. amend. V ...............................1, 11, 16, 31

Statutes

5 U.S.C. § 702 .......................................................... 22

5 U.S.C. § 706 .....................................................11, 15

15 U.S.C. § 717 et seq................................................ 3

15 U.S.C. § 717f ......................................................... 1

xiii

15 U.S.C. § 717f(a)..................................................... 6

15 U.S.C. § 717f(c)(1)(A) ............................................ 3

15 U.S.C. § 717f(c)(1)(B) ...................................3, 5, 18

15 U.S.C. § 717f(e) ............................................... 4, 20

15 U.S.C. § 717f(h) ................................................ 3, 5

15 U.S.C. § 717r..........................................1, 7, 13, 26

15 U.S.C. § 717r(a) ......................... 3-7, 13, 14, 23, 24

15 U.S.C. § 717r(b) ...............................4, 5, 23, 24, 26

28 U.S.C. § 1254(1) .................................................... 1

18 C.F.R. § 157.201 et seq. ......................1, 5, 6, 8, 11

18 C.F.R. § 157.203 ..........................................1, 5, 21

18 C.F.R. § 157.203(b) ......................................... 7, 21

18 C.F.R. § 157.204 ............................................... 5, 6

18 C.F.R. § 157.208 ............................................1, 5, 6

18 C.F.R. § 157.208(a) ......................................... 7, 21

Other Authorities

Katy Fleury, Natural gas pipeline

project completions increase

takeaway capacity in producing

regions, U.S. Energy Info. Admin.

(March 17, 2025),

https://www.eia.gov/todayinenergy/

detail.php?id=64744&utm ................................ 27

xiv

Natural Gas Explained, U.S. Energy

Info. Admin. (Mar. 19, 2024),

https://www.eia.gov/energyexplained/

natural-gas/natural-gas-pipelines.php ................. 27

Revisions to Auxiliary Installations,

Replacement Facilities, and Siting

and Maintenance Regulations,

78 Fed. Reg. 72794, 72804, n.78

(Dec. 4, 2013) (to be codified at 18

C.F.R. §§ 157 & 380) ........................................... 5

S. Rep. No. 752, 79th Cong., 1st Sess.,

26 (1945) ............................................................ 22

A. Scalia & B. Garner, Reading Law:

The Interpretation of Legal Texts

56 (2012) ............................................................ 24

Chris Wright, Sec. of Energy, U.S.

Dept. of Energy, Keynote Remarks

at CERAWeek 2025 (Mar. 10, 2025) ................ 27

Victoria Zaretskaya, The United States

remained the world’s largest

natural gas exporter in 2024,

U.S. Energy Info. Admin.

(March 27, 2025),

https://www.eia.gov/todayinenergy/

detail.php?id=64844&utm ................................ 27

PETITION FOR A WRIT OF CERTIORARI

Petitioner RDFS, LLC (“RDFS”) respectfully

petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Fourth Circuit and clarify the jurisdiction of the

federal courts to review agency interpretations of law

and to vindicate the due process rights set forth in the

Natural Gas Act and the United States Constitution.

OPINIONS BELOW

The order and judgment of the Fourth Circuit are

not reported and are included in the Appendix (“App.”)

at 1a. The Notice Rejecting Request to Intervene and

for Rehearing issued by Respondent Federal Energy

Regulatory Commission is reported at 186 FERC

¶ 62,052, the Commission’s Notice of Denial of

Rehearing is reported at 187 FERC ¶ 62,027, and both

are included in App. 3a–5a and 2a, respectively.

JURISDICTION

The Fourth Circuit entered judgment on January

8, 2025 (App. 1a). On April 1, 2025, Chief Justice

Roberts extended the time to file a petition for writ of

certiorari until June 7, 2025. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

The relevant provisions of the Due Process Clause,

U.S. Const. Amend. V; the Natural Gas Act, 15 U.S.C.

§§ 717f, 717r; and the Commission’s regulations

under the Act, 18 C.F.R. §§ 157.201, 157.203, 157.208,

are reproduced at App. 12a–31a.

STATEMENT OF THE CASE

The Federal Energy Regulatory Commission’s

(“FERC”) blanket certificate regulations permit

private pipeline companies to exercise eminent

domain without individualized review, public

necessity findings, or any opportunity for affected

landowners to be heard. Blanket certificates—

creatures of regulation, not statute—never expire and

may authorize takings for decades or centuries, but

FERC nevertheless asserts that the Natural Gas Act’s

(“NGA”) statutory thirty-day rehearing provision for

Commission orders applies. Hence, under this

framework, landowners whose property is condemned

decades after a blanket certificate was issued are

barred from challenging the legality of the taking

unless they sought rehearing within thirty days of the

original certificate—no matter how long ago that was

or how unforeseeable the project, even if they did not

receive notice. FERC has effectively engineered a

regulatory scheme which insulates blanket

certificates and the condemnations they enable from

any form of judicial scrutiny.

Federal courts, in turn, have deferred to FERC.

District courts treat the original blanket certificate as

conclusive proof that FERC has reviewed and

approved each subsequent project, even though FERC

performs no such review. And, in this case, the Fourth

Circuit deferred to FERC’s interpretation of its own

power to issue the blanket certificate without

comment. This deference to FERC contravenes this

Court’s directive that courts—not agencies—must

resolve questions of law. See Loper Bright Enters. v.

Raimondo, 603 U.S. 392 (2024). Had the Fourth

Circuit considered the issue, it would have found that

FERC’s interpretation conflicts with the NGA’s text

and subverts constitutional protections.

Unless this Court intervenes, FERC’s regulatory

framework will continue to immunize the perpetual

exercise of eminent domain by private actors with no

meaningful judicial review.

The Legal Framework of the NGA

Congress declared that federal regulation of the

transportation and sale of natural gas is necessary in

the public interest when it enacted the NGA. See 15

U.S.C. § 717 et seq. The NGA states, in relevant part,

that no company shall “undertake the construction or

extension of any facilities [for the transportation or

sale of natural gas], or acquire or operate any such

facilities or extensions thereof, unless there is in force

with respect to such natural gas company a certificate

of public convenience and necessity issued by the

Commission authorizing such acts or operations” (a

“Certificate”). 15 U.S.C. § 717f(c)(1)(A). When a

company applies for a Certificate to authorize

proposed acts or operations, the NGA requires that

FERC “shall set the matter for hearing and shall give

such reasonable notice of the hearing thereon to all

interested persons.” Id. § 717f(c)(1)(B).

The issuance of a Certificate vests the certificate

holder with the extraordinary power to condemn

private property through eminent domain. Id.

§ 717f(h). Accordingly, the NGA requires that parties

aggrieved by an order issuing such a Certificate be

permitted to “apply for a rehearing within thirty days

after the issuance of such order.” Id. § 717r(a).

Applying to FERC for rehearing is a prerequisite for

judicial review of the order. Id.

The NGA vests jurisdiction to review FERC’s

orders “in the court of appeals of the United States for

any circuit wherein the natural-gas company to which

the order relates is located or has its principal place of

business, or in the United States Court of Appeals for

the District of Columbia.” 15 U.S.C. § 717r(b). A party

aggrieved by a FERC order invokes the jurisdiction of

the court of appeals “by filing in such court, within

sixty days after the order of the Commission upon the

application for rehearing, a written petition praying

that the order of the Commission be modified or set

aside in whole or in part.” Id. “Upon the filing of such

petition such court shall have jurisdiction, which upon

the filing of the record with it shall be exclusive, to

affirm, modify, or set aside such order in whole or in

part.” Id. The NGA provides that “[n]o objection to the

order of the Commission shall be considered by the

court unless such objection shall have been urged

before the Commission in the application for

rehearing unless there is reasonable ground for

failure so to do.” Id.

Thus, the NGA requires that Certificates be issued

only after notice to interested parties and a hearing.

The purpose of such hearing is to ensure the proposed

acts or operations are “or will be required by the

present or future public convenience and necessity,”

and that the “applicant is able and willing properly to

do the acts and to perform the service proposed and to

conform to the provisions of the [NGA] and the

requirements, rules, and regulations of the

Commission . . . otherwise such application shall be

denied.” 15 U.S.C. § 717f(e). The NGA grants the

Commission some discretion in identifying interested

parties who must be notified prior to a hearing on an

application for a Certificate, but envisions that all

persons potentially aggrieved by an order will be able

to petition for rehearing within thirty days and then

to seek judicial review, if necessary. 15 U.S.C.

§§ 717f(c)(1)(B), 717r(a)–(b).

Blanket Certificates

In addition to ordinary Certificates—which are

provided for in the text of the NGA—FERC

promulgated regulations which create “Blanket

Certificates.” 18 C.F.R. § 157.201 et seq. (the “Blanket

Certificate Regulations”). Blanket Certificates grant

holders “[a]utomatic authorization” to engage in

certain activities—including eminent domain—

“without further Commission approval,” provided that

the project cost does not exceed $14.5 million. Id.

§§ 157.203, 157.208; 15 U.S.C. § 717f(h). Under the

regulations, FERC is not obligated to review (or even

be aware of) any given project that a certificate holder

claims is covered by a Blanket Certificate prior to a

condemnation action. FERC’s Blanket Certificate

Regulations do not place any temporal or geographic

limitations on acts which are automatically

authorized. See 18 C.F.R. §§ 157.204, 157.203,

157.208. 1 Blanket Certificates never expire and never

See also Revisions to Auxiliary Installations, Replacement

Facilities, and Siting and Maintenance Regulations, 78 Fed. Reg.

72794, 72804, n.78 (Dec. 4, 2013) (to be codified at 18 C.F.R.

§§ 157 & 380) (noting that “in instances where a pipeline

company . . . constructs auxiliary or replacement facilities . . .

need to be renewed. See generally 18 C.F.R. § 157.201

et seq. While the certificate holder is prohibited from

“segment[ing] projects in order to meet the cost

limitation[],” there is no mechanism for an aggrieved

party to request enforcement. See generally 18 C.F.R.

§ 157.208. 2

Before a Blanket Certificate is issued, a pipeline

operator must file an application with certain

prescribed contents. 18 C.F.R. § 157.204. FERC is

then obligated to hold a hearing to consider whether

“such action [is] necessary or desirable in the public

interest.” 15 U.S.C. § 717f(a). FERC may then order

that the Blanket Certificate is issued and—according

to FERC—any aggrieved party must file an

application for rehearing within thirty days or further

review is barred. 15 U.S.C. § 717r(a). The thirty-day

deadline for an application for rehearing is a

jurisdictional bar to challenges to FERC orders. Id.

Additionally, FERC orders granting certificates may

not be attacked collaterally. E.g., Columbia Gas

Transmission, LLC v. RDFS, LLC, No. 23-CV-364,

2024 WL 993093, at *2 (N.D.W. Va. Feb. 27, 2024)

(“Collateral attacks on a certificate in federal district

courts are improper.”). As condemnations of private

property for new projects under a Blanket Certificate

can be “authorize[d] . . . without further Commission

approval,” there is no new “order issued by the

Part 157 blanket certificate regulations impose no limitations on

the placement of the facilities”).

2 See also Pavelich v. Nat. Gas Pipeline Co. of Am., No. 02 C

3374, 2003 WL 22303140, at *3 (N.D. Ill. Oct. 8, 2003) (finding

no private right of action to enforce the segmentation limit).

Commission” subject to hearing and review. See 15

U.S.C. § 717r; 18 C.F.R. §§ 157.203(b), 157.208(a).

Whether an order granting a Blanket Certificate is

valid for the purposes of the Section 717r(a)

jurisdictional bar appears to be a question of first

impression. Nonetheless, FERC argued below that the

jurisdictional bar applied and the Fourth Circuit

deferred to FERC on the question. See, e.g., 186 FERC

¶ 62,052 (“Because the 30-day rehearing deadline is

statutorily based, it cannot be waived or extended,

and the request for rehearing . . . must be rejected as

untimely.”); RDFS, LLC v. Fed. Energy Regul.

Comm’n, 24-1530 [ECF No. 29] (4th Cir. Jan. 8, 2025)

(summarily dismissing the appeal below for want of

jurisdiction). The upshot is that—according to FERC

and the lower courts—thirty-one days after a Blanket

Certificate is issued it becomes unreviewable, even

though that Blanket Certificate may last decades or

centuries, even though the land condemned by the

holder may be far removed from that originally

contemplated by the Blanket Certificate, and even

though the landowner had no opportunity to object.

In other words, a Blanket Certificate holder

forever has the power to condemn property and, so

long as it spends less than $14.5 million at a time (a

limit which is also unreviewable), it need not make

any individual showing of public necessity and a

landowner has no legal recourse whatsoever. 3

See generally Columbia Gas Transmission, LLC v. 1.01

Acres, More or Less in Penn Twp., 768 F.3d 300, 316 (3d Cir.

2014) (Jordan, J., dissenting) (“[FERC’s regulations are] a grant

of limitless authority to natural gas companies . . . to bypass all

Relevant Facts and Procedural History

RDFS is a family-owned company formed to own

and manage certain real property interests for

members of the Six family in West Virginia. These

include a certain tract of land located in Wetzel

County, West Virginia, known as tax parcel number

2-8-58 (the “Property”). RDFS’s predecessor in

interest granted an easement and right of way on the

Property to The Manufacturers Light and Heat

Company dated November 3, 1969, recorded in the

office of the County Clerk of Wetzel County, West

Virginia (the “Right of Way”). There is no properly

indexed instrument of record in Wetzel County which

conveys the interest of Manufacturers under the Right

of Way to any party. Today, Columbia Gas

Transmission, LLC (“Columbia”), the IntervenorRespondent below, operates a pipeline across the

Right of Way.

In November 1982, Columbia Gas Transmission

Corporation applied to FERC for a Blanket Certificate

under 18 C.F.R. § 157.201 et seq. RDFS’s predecessors

in interest were not notified as interested parties prior

to FERC’s hearing on the application. On January 7,

1983, FERC granted the Blanket Certificate in its

order styled “Findings and Order after statutory

Hearing Issuing Certificate of Public Convenience and

Necessity Authorizing Routine Activities and

notice-and-hearing requirements by tying its proposed project to

the originally authorized pipeline, even if that authorization was

provided decades ago and in an entirely different location. No

consideration is given to the rights of newly affected parties.

That is fundamentally at odds with regulations requiring notice

and an opportunity to participate in certificate hearings.”).

Permitting and Approving Abandonment” at Docket

No. CP83-76-000, 22 FERC ¶ 62,029 (1983)

(“Columbia’s Blanket Certificate”) (App. 6a). In the

intervening decades, the Certificate was transferred

to Columbia.

About forty years later, in 2023, a resource

extraction company began performing longwall coal

mining in the area around and beneath the Property.

Columbia asserted a need to condemn part of the

Property to support its operations to mitigate

potential subsidence damage to its pipeline resulting

from the mining. To that end, Columbia filed and

served a Complaint and Notice of Condemnation upon

RDFS on December 20, 2023, in the United States

District Court for the Northern District of West

Virginia. Columbia Gas Transmission, LLC v. RDFS,

LLC, No. 23-CV-364 [ECF No. 1] (N.D.W. Va. Dec. 19,

2023). At no time prior to Columbia filing suit did

RDFS or its predecessors in interest have notice that

Columbia’s Blanket Certificate—issued in the name of

a defunct corporation and subsequently transferred to

a company which had no record title to natural gas

facilities on the Property—would potentially

authorize takings on the Property.

RDFS attempted to challenge the condemnation of

its property, including whether the proposed

operations complied with the NGA, but the District

Court deferred to FERC and the Fourth Circuit.

Specifically, the District Court stated that “Collateral

attacks on a certificate in federal district courts are

improper. . . . [T]he proper channel to challenge the

FERC certificate is to seek administrative review

under the Natural Gas Act and judicial review is only

available in the Court of Appeals.” RDFS, 2024 WL

993093, at *2 (cleaned up).

In parallel, on January 24, 2024, RDFS filed a

motion to intervene and for rehearing on Columbia’s

Blanket Certificate with FERC. In re Columbia Gas

Transmission Corp., No. CP83-76-0008 (Jan. 24,

2024). FERC denied Petitioner’s request on February

7, 2024. 186 FERC ¶ 62,052 (App. 3a). RDFS timely

requested reconsideration but received a Denial of

Rehearing by Operation of Law on April 11, 2024,

when FERC failed to act. 187 FERC ¶ 62,027 (App.

2a).

On June 10, 2024, RDFS timely petitioned the

Fourth Circuit for review of FERC’s decision to deny

RDFS’s motion. RDFS, LLC v. U.S. Fed. Energy Reg.

Comm’n, No. 24-1530 [ECF No. 3] (4th Cir. June 10,

2024). On November 1, 2024, FERC moved the Fourth

Circuit to dismiss RDFS’s petition for want of

jurisdiction. RDFS, No. 24-1530 [ECF No. 20]. FERC

argued that because the NGA requires aggrieved

parties to petition for rehearing within thirty days of

FERC’s order granting the Blanket Certificate (issued

in 1982) RDFS’s application for rehearing was

untimely. Id. at 3–5. FERC further argued that a

timely application for rehearing is a pre-requisite for

seeking judicial review, so the Fourth Circuit lacked

jurisdiction. Id.

On January 8, 2025, the Fourth Circuit entered an

order which simply stated: “Upon consideration of the

submissions relative to respondent’s motion to

dismiss the appeal for lack of jurisdiction and

intervenor’s motion to reply to the motion to dismiss,

the court grants the motions.” RDFS, No. 24-1530

[ECF No. 29].

REASONS FOR GRANTING THE PETITION

FERC’s Blanket Certificate Regulations, 18 C.F.R.

§ 157.201 et seq., grant private companies perpetual

authority to exercise eminent domain without the

constitutional safeguards of notice, hearing, or

judicial review. By deferring to FERC’s interpretation

of its own authority, the Fourth Circuit allowed an

agency-created regime to operate beyond the bounds

of the Natural Gas Act and the Fifth Amendment.

This case presents critical questions about the scope

of agency power, access to judicial review, and the

rights of property owners—all of which merit this

Court’s plenary attention.

The Fourth Circuit Improperly Ceded

Judicial Authority to FERC

The Fourth Circuit deferred without discussion to

an agency’s construction of its governing statute that

tramples on the text of that statute and the

constitutional rights of impacted persons. Aside from

being substantively incorrect, the Fourth Circuit’s

deference also runs afoul of this Court’s instruction

that “courts, not agencies, will decide all relevant

questions of law arising on review of agency action.”

Loper Bright, 603 U.S. at 392 (quotation marks

omitted, emphasis in original) (quoting 5 U.S.C.

§ 706).

Deference to FERC on the Scope of Its

Own Power Contradicts This Court’s

Clear Precedent

The Fourth Circuit erred by deferring to FERC on

the threshold question of its own authority. It is wellsettled that, where an agency promulgates a

regulation that is “out of harmony with the [enacting]

statute, [it] is a mere nullity.” Dixon v. United States,

381 U.S. 68, 74 (1965) (quoting Manhattan Gen.

Equip. Co. v. Comm’r of Internal Revenue, 297 U.S.

129, 134 (1936)); accord Alexander v. Sandoval, 532

U.S. 275, 291 (2001) (“Agencies may play the

sorcerer’s apprentice but not the sorcerer himself.”).

Accordingly, this Court has a long history of analyzing

regulations for compliance with their enacting

statutes and, if they are in conflict, striking them

down. See, e.g., Alexander, 532 U.S. at 291; United

States v. Larionoff, 431 U.S. 864, 877 (1977); Brown v.

Gardner, 513 U.S. 115, 122 (1994); Leary v. United

States, 395 U.S. 6, 24 (1969); Koshland v. Helvering,

298 U.S. 441, 447 (1936).

To that end, this Court explained just last year

that “[c]ourts must exercise their independent

judgment in deciding whether an agency has acted

within its statutory authority.” Loper Bright, 603 U.S.

at 412. While “the judgment of the Executive Branch

may help inform that inquiry . . . [,] courts need not

and under the APA may not defer to an agency

interpretation of law.” Id. at 413 (emphasis added);

accord Seven Cnty. Infrastructure Coal. v. Eagle

Cnty., --- S.Ct.--- No. 23-975, 2025 WL 1520964, at *6

(U.S. May 29, 2025) (“[W]hen an agency interprets a

statute, judicial review of the agency’s interpretation

is de novo.”). At its root, this principle is a recognition

and extension of Chief Justice Marshall’s declaration

that “[i]t is emphatically the province and duty of the

judicial department to say what the law is.” Marbury

v. Madison, 5 U.S. 137, 177 (1803); see Loper Bright,

603 U.S. at 412.

In accordance with this doctrine, about five years

ago the Court of Appeals for the District of Columbia

Circuit considered a similar issue under 15 U.S.C.

§ 717r and held that FERC was not entitled to

deference. There, the court considered “whether

[FERC] had the authority to issue . . . Tolling Order[s]

that . . . prevent the petitioners from seeking judicial

review.” Allegheny Def. Project v. FERC, 964 F.3d 1,

12 (D.C. Cir. 2020) (en banc). FERC argued that it was

entitled to deference because “15 U.S.C.§ 717r(a)

addresses only FERC’s own jurisdiction to entertain

rehearing requests.” Id. (cleaned up). Rejecting this

argument, the court held that:

[D]eference is available only when an

agency interprets a statutory provision

that Congress has charged it with

administering through application of its

expertise. But statutory provisions

addressing the jurisdiction of federal

courts do not fit that mold. Federal

agencies do not administer and have no

relevant expertise in enforcing the

boundaries of the courts’ jurisdiction.

Id. at 11 (citation omitted).

This case presented a similar issue, but the Fourth

Circuit held that it lacked jurisdiction to hear RDFS’s

petition. RDFS, No. 24-1530 [ECF No. 29]. In so doing,

it relied on FERC’s one and only argument: that an

order issuing a Blanket Certificate is subject to the

NGA’s thirty-day jurisdictional bar, irrespective of

any future condemnations executed pursuant to that

certificate. 15 U.S.C. § 717r(a). See RDFS, No. 241530 [ECF No. 20]. But the Fourth Circuit’s decision

begs the question: Does FERC have the power to order

the issuance of such a Blanket Certificate in the first

place?

The Fourth Circuit should not have deferred to

FERC on this question. Since portions of the Blanket

Certificate Regulations are at loggerheads with the

NGA, see infra § II(A), (B), there is at least a colorable

claim that they are “a mere nullity.” Dixon, 381 U.S.

at 74 (citation omitted). This is precisely the sort of

question this Court advised the lower courts to take

up (rather than defer on) in Loper Bright. See 603 U.S.

at 401 (“The very point of the traditional tools of

statutory construction—the tools courts use every

day—is to resolve statutory ambiguities. That is no

less true when the ambiguity is about the scope of an

agency’s own power—perhaps the occasion on which

abdication in favor of the agency is least appropriate.”

(emphasis in original)); see also id. at 414 (Thomas, J.,

concurring) (“The judicial power, as originally

understood, requires a court to exercise its

independent

judgment

interpreting

and

expounding upon the laws.” (brackets and citation

omitted)); id. at 430 (Gorsuch, J., concurring) (“Th[e]

duty of independent judgment is perhaps the defining

characteristic of Article III judges.” (cleaned up)).

Accordingly, a court of appeals must first determine

whether a regulation that purports to strip it of

jurisdiction is lawful before dismissing a petition on

that basis.

The Decision Below Improperly Insulates

Agency Action from Constitutional

Scrutiny

Not only did the Fourth Circuit defer to FERC on

a legal question, it did so despite the obvious

constitutional issues appearing on the face of this

dispute, see infra § II, and which were squarely

presented to it. See, e.g., Miller v. Johnson, 515 U.S.

900, 923 (1995) (“[W]e think it inappropriate for a

court engaged in constitutional scrutiny to accord

deference to the [agency’s] interpretation of the Act.”);

Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522

U.S. 359, 387 (1998) (Rehnquist, C.J., concurring in

part and dissenting in part) (“We have held that when

an [agency] interpretation raises such constitutional

concerns, the [agency’s] interpretation of the

[enacting statute] is not entitled to deference.”); Loper

Bright, 603 U.S. at 391 (“[W]hen presented, the

reviewing court shall . . . interpret constitutional and

statutory provisions . . . .” (quoting 5 U.S.C. § 706)).

FERC’s regulations allow companies to selfauthorize projects under Blanket Certificates without

FERC making any actual determination as to whether

the takings are in the public interest or in accordance

with the NGA. See infra § II(A), (B). Then, according

to FERC, the NGA bars district courts from

collaterally reviewing whether those takings are for a

lawful purpose. If courts of appeals are permitted to

simply accept FERC’s position that Blanket

Certificates are permanently unreviewable—even as

they continue to authorize new takings decades

later—then there is no courtroom left in which

aggrieved landowners may seek recourse.

Based on this Court’s precedent and the principles

of separation of powers, the Fourth Circuit should not

have deferred to FERC on the scope of its powers and

the constitutionality of the Blanket Certificate

Regulations.

II.

FERC’s Blanket Certificate Mechanism is an

Expansion of Executive Power in Defiance of

the Text of the NGA, the Fifth Amendment,

and this Court’s Precedents

FERC’s Blanket Certificate Regulations are

unconstitutional and out of line with this Court’s

precedents. They permit private companies to selfauthorize takings without due process for landowners

or any finding that specific projects serve the public

interest, then shield those actions from judicial

review. This unchecked delegation of power violates

the Fifth Amendment, circumvents the procedural

safeguards in the NGA, and conflicts with this Court’s

precedent on judicial oversight of agency action.

Blanket Certificates Violate

Principles of Due Process

Core

Landowners are stripped of due process under

FERC’s Blanket Certificate regime. The Fifth

Amendment to the United States Constitution

guarantees that “No person shall . . . be deprived of

life, liberty or property, without due process of law.”

U.S. Const. Amend. V. While the requirements of due

process vary by context, “[a]n elementary and

fundamental requirement of the process in any

proceeding which is to be accorded finality is notice

reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the

action and afford them an opportunity to present their

objections.” Covey v. Town of Somers, 351 U.S. 141,

146 (1956) (quoting Mullane v. Cent. Hanover Bank &

Tr. Co., 339 U.S. 306, 314 (1950)). “Failure to give

notice violates the most rudimentary demands of due

process of law.” Peralta v. Heights Med. Ctr., Inc., 485

U.S. 80, 84 (1988) (quotations and citation omitted));

see Walker v. City of Hutchinson, 352 U.S. 112, 115

(1956) (“[D]ue process requires that an owner whose

property is taken for public use must be given a

hearing . . . [but] [t]he right to a hearing is

meaningless without notice.”); Mennonite Bd. of

Missions v. Adams, 462 U.S. 791, 800 (1983) (“Notice

by mail or other means as certain to ensure actual

notice is a minimum constitutional precondition to a

proceeding which will adversely affect the . . .

property interests of any party . . . .” (emphasis in

original)).

Further, “[t]he right to a prior hearing has long

been recognized by this Court,” which has

“traditionally insisted that, whatever its form,

opportunity for that hearing must be provided before

the deprivation at issue takes effect.” Fuentes v.

Shevin, 407 U.S. 67, 82, (1972). The opportunity to

present objections must be “granted at a meaningful

time and in a meaningful manner.” Parratt v. Taylor,

451 U.S. 527, 540 (1981) (quoting Armstrong v.

Manzo, 380 U.S. 545, 552 (1965)), overruled on other

grounds by Daniels v. Williams, 474 U.S. 327 (1986).

Congress recognized the strictures of due process

in the statutory text of the NGA. Before issuing a

Certificate, the statute requires that FERC “shall set

the matter for hearing and shall give such reasonable

notice of the hearing thereon to all interested

persons.” 15 U.S.C. § 717f(c)(1)(B). The statute

conforms to the paradigmatic formulation of due

process: notice and an opportunity to be heard.

Blanket Certificates, however, fall drastically

short of these constitutional and statutory mileposts.

The automatic authorization provisions allow

perpetual, self-implementing takings for future

activities often unforeseen at the time the Blanket

Certificate was issued, making notice to affected

parties impossible. Take the facts of this case as an

example. RDFS would have had to attend FERC’s

hearing on Columbia’s Blanket Certificate in 1982,

forty years before any indication that its property

could be condemned. FERC offers the façade of due

process, not its constitutional guarantee.

Blanket Certificates Invoke the Takings

Power Without Safeguarding the Public

Use Requirement

The Blanket Certificate Regulations also violate

constitutional and statutory safeguards on takings.

The Fifth Amendment’s property protections include

that “one person’s property may not be taken for the

benefit of another private person without a justifying

public purpose, even though compensation be paid.”

Thompson v. Consolidated Gas Corp., 300 U.S. 55, 80

(1937); accord Kelo v. City of New London, 545 U.S.

469, 497 (2005) (O’Connor, J., dissenting) (“[The]

Government may compel an individual to forfeit her

property for the public’s use, but not for the benefit of

another private person. This requirement promotes

fairness as well as security.”).

The question of what constitutes a public use

“remains a judicial one.” City of Cincinnati v. Vester,

281 U.S. 439, 446 (1930). Thus, while courts accord

deference to the political branches on whether a

taking serves a “public use,” this Court’s

jurisprudence requires that an agency undertake factspecific analysis, supported by the record, to

demonstrate that each taking is not “under the mere

pretext of a public purpose.” Kelo, 545 U.S. at 478. As

Justice O’Connor recognized in dissent in Kelo:

Where is the line between “public” and

“private” property use? We give

considerable deference to legislatures’

determinations

about

what

governmental activities will advantage

the public. But were the political

branches the sole arbiters of the publicprivate distinction, the Public Use

Clause would amount to little more than

hortatory fluff. An external, judicial

check on how the public use requirement

is interpreted, however limited, is

necessary if this constraint on

government power is to retain any

meaning.

Kelo, 545 U.S. at 497 (O’Connor, J., dissenting). 4

Therefore, for each taking, there must be at least some

See also W. River Bridge Co. v. Dix, 47 U.S. 507, 545 (1848)

(Woodbury, J., concurring) (“[T]he doctrine[] that this right of

eminent domain exists . . . when merely convenient, though not

opportunity for an aggrieved property owner to

challenge whether “the public has a right to employ

[the power of the Takings Clause].” 5 Eychaner v. City

of Chicago, 141 S. Ct. 2422, 2423 (2021) (Thomas, J.,

dissenting from denial of cert.) (citation omitted);

compare Nat’l R.R. Passenger Corp. v. Bos. & Maine

Corp., 503 U.S. 407, 422 (1992) (“[T]he public use

requirement of the Takings Clause is coterminous

with the regulatory power . . . .”), with Michigan v.

E.P.A., 576 U.S. 743, 750 (2015) (“[A]gency action is

lawful only if it rests on a consideration of the relevant

factors.” (quotation marks and citation omitted)).

Recognizing this constitutional imperative,

Congress embedded its protection in the NGA. FERC

may only grant a Certificate if it concludes that “the

proposed service, sale, operation, construction,

extension, or acquisition . . . is or will be required by

the present or future public convenience and

necessity.” 15 U.S.C. § 717f(e).

The Blanket Certificate Regulations evade these

safeguards on takings. So long as a project does not

necessary, does not seem to me by any means clearly

maintainable. It is too broad, too open to abuse.”).

5 See also Chicago, B. & Q. Ry. Co. v. Illinois, 200 U.S. 561,

593 (1906) (“If, in the execution of any power, no matter what it

is, the government, Federal or state, finds it necessary to take

private property for public use . . . [,] [i]f the means employed

have no real, substantial relation to public objects which

government may legally accomplish,—if they are arbitrary and

unreasonable, beyond the necessities of the case,—the judiciary

will disregard mere forms, and interfere for the protection of

rights injuriously affected by such illegal action. The authority

of the courts to interfere in such cases is beyond all doubt.”

(citations omitted)).

exceed $14.5 million, a gas company is automatically

authorized to exercise eminent domain without

regard to geographic or temporal limits. 6 See 18

C.F.R. §§ 157.203(b), 157.208(a). In cases of Blanket

Certificates issued decades before the relevant project

was even conceived, the assertion that the project

complies

with

the

NGA

because

FERC

“automatically” approved it, or that administrative

review is available through FERC, is an

unsustainable fiction. Neither the agency nor the

certificate holder is obligated to make a “public

necessity” finding before condemning property (or

after, for that matter). And landowners are left with

no meaningful avenue to challenge whether their

property is being taken for public use or not. In sum,

the Blanket Certificate Regulations lack any

safeguard against takings for private use. With no

expiration and no oversight, these perpetual

authorizations—wielded entirely at the discretion of

private actors—pose a serious and unchecked risk of

abuse.

Blanket Certificates Allow Eminent

Domain to be Exercised in Perpetuity,

Shielded from Judicial Scrutiny

Not only do the Blanket Certificate Regulations

make it impossible to be heard by FERC, they—

contrary to the text of the NGA—also make judicial

review effectively impossible. When this Court

6 It bears repeating that that this project size limit is

enforced by what amounts to the honor system. See 18 C.F.R.

§ 157.203. A party whose land is being condemned may not

challenge the condemnation on this ground. E.g., Pavelich, 2003

WL 22303140, at *3.

reviews a regulation, it “begin[s] with the strong

presumption that Congress intends judicial review of

administrative action.” Bowen v. Mich. Acad. of Fam.

Physicians, 476 U.S. 667, 670 (1986). Thus, “judicial

review of a final agency action by an aggrieved person

will not be cut off unless there is persuasive reason to

believe that such was the purpose of Congress.” Id.

(quoting Abbott Lab’ys v. Gardner, 387 U.S. 136, 140

(1967)). As the Court has recognized, “[i]t has never

been the policy of Congress to prevent the

administration of its own statutes from being

judicially [reviewed, because] . . . statutes would in

effect be blank checks drawn to the credit of some

administrative officer or board.” Id. at 671 (quoting S.

Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)); see

5 U.S.C. § 702 (“A person suffering legal wrong

because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review

thereof.”). This presumption carries even greater

weight where, as here, judicial review is the only

check on political overreach. See Kelo, 545 U.S. at 497

(O’Connor, J., dissenting) (“[W]ere the political

branches the sole arbiters of the public-private

distinction, the Public Use Clause would amount to

little more than hortatory fluff.”); Cedar Point

Nursery v. Hassid, 594 U.S. 139, 147 (2021)

(“[P]rotection of property rights is necessary to

preserve freedom and empowers persons to shape and

to plan their own destiny in a world where

governments are always eager to do so for them.”

(cleaned up)). 7

This fundamental presumption is codified in the

NGA, which explicitly ensures that FERC orders are

subject to judicial review. 15 U.S.C. § 717r(b). Yet,

FERC has crafted a regulatory scheme that renders

this right illusory. FERC points to the jurisdictional

bar in 15 U.S.C. § 717r(a), which states that “[n]o

proceeding to review any order of the Commission

shall be brought by any person unless such person

shall have made application to the Commission for a

rehearing thereon [within thirty days].”

Under this framework, eminent domain exercised

under a Blanket Certificates—which may remain

valid for decades or even centuries without geographic

limitations—is effectively immune from judicial

review. As this case illustrates, notice of

condemnation under a Blanket Certificate (if a

landowner receives any at all) may come decades after

the issuance of that certificate. Yet FERC insists that

any challenge must have been brought within thirty

7 See also Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419, 436 (1982) (“[A]n owner suffers a special kind of

injury when a stranger directly invades and occupies the owner’s

property. . . . [P]roperty law has long protected an owner’s

expectation that he will be relatively undisturbed at least in the

possession of his property. To require, as well, that the owner

permit another to exercise complete dominion literally adds

insult to injury.

Furthermore, such an occupation is

qualitatively more severe than a regulation of the use of

property, even a regulation that imposes affirmative duties on

the owner, since the owner may have no control over the timing,

extent, or nature of the invasion.” (citations omitted, emphases

in original)).

days of the original Blanket Certificate order—no

matter how remote in time or location the eventual

project and condemnation may be. 8 See, e.g., RDFS,

No. 24-1530 [ECF No. 20] (“The application of [15

U.S.C. § 717r(a)] to this case is . . . clear. RDFS did

not apply for agency rehearing within thirty days of

the Certificate Order; it did not even apply within

thirty years of that order. Its tardiness precludes

jurisdiction.”

(emphasis

original)).

This

interpretation nullifies the NGA’s guarantees of

judicial review, and leaves landowners with no

meaningful way to challenge the taking of their

property. Allowing FERC to foreclose judicial review

of new takings on previously unaffected properties

under decades old Blanket Certificates, “would

essentially close the courthouse doors on those

unregulated plaintiffs—a radical change to

administrative law that would insulate a broad swath

of agency actions from any judicial review.” Corner

Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 144

S. Ct. 2440, 2463 (2024) (Kavanaugh, J., concurring).

FERC’s strategy of condemnation-by-surprise

should be rejected. Congress clearly intended that

FERC orders be judicially reviewable, which is why it

included Section 717r(b) in the text of the NGA. 15

U.S.C. § 717r(b); see generally CTS Corp. v.

Waldburger, 573 U.S. 1, 12 (2014) (“Congressional

intent is discerned primarily from the statutory

text.”); A. Scalia & B. Garner, Reading Law: The

Interpretation of Legal Texts 56 (2012) (“[Congress’s]

purpose must be derived from the text . . . .”). By

8 And, as described above, a Blanket Certificate may not be

attacked collaterally, either. E.g., RDFS, 2024 WL 993093, at *2.

treating issuance of a Blanket Certificate as a single

final “order,” despite its open-ended “automatic

authorizations” of then-unknown future projects,

FERC entirely insulates itself from judicial scrutiny,

defying both the text of the NGA and this Court’s

presumption of judicial review. “[A]n agency

interpretation that is inconsistent with the design and

structure of the statute as a whole” is “impermissible.”

Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 321

(2014) (cleaned up)); see Loper Bright, 603 U.S. at 387

(“[T]he supremacy of law demands that there shall be

opportunity to have some court decide whether an

erroneous rule of law was applied.” (citation omitted));

Corner Post, 603 U.S. at 824 (An interpretation

should be disfavored where it means that “only those

fortunate enough to suffer an injury within” a short

time after agency action may seek relief and

“[e]veryone else—no matter how serious the injury or

how illegal the rule—has no recourse.” (cleaned up)).

The decision below is fundamentally at odds with

constitutional guarantees, the NGA’s statutory

framework, and this Court’s established precedent.

Plenary review is warranted.

III. The Decision Below Presents a Circuit Split

With Broad Implications for an Expanding

Nationwide Industry, Raises Significant

Constitutional Questions, and the Issues

Presented Are Likely to Recur in the Absence

of this Court’s Review

The Fourth Circuit’s decision warrants this

Court’s immediate review. It conflicts with the

decision of another Circuit Court of Appeals which is

injecting uncertainty into a growing industry of

national importance, it is unlikely to be corrected

without intervention, and it is manifestly contrary to

this Court’s precedents.

First, there is an important split between the

Courts of Appeals for the Fourth Circuit and the

District of Columbia Circuit regarding whether FERC

is entitled to deference in its interpretation and

application of 15 U.S.C. § 717r—the NGA’s section

dealing with jurisdiction. As discussed above, the

Fourth Circuit deferred without comment to FERC’s

interpretation of Section 717r. RDFS, No. 24-1530

[ECF No. 29]. On the other hand, the District of

Columbia Circuit held just five years ago that FERC

was not entitled to deference when interpreting

Section 717r because “Federal agencies do not

administer and have no relevant expertise in

enforcing the boundaries of the courts’ jurisdiction.”

Allegheny Def. Project, 964 F.3d at 11. This case

would have been decided differently if RDFS had

brought it in the District of Columbia Circuit instead

of the Fourth Circuit.

This is not an idle distinction: the split between the

Fourth and District of Columbia Circuits will

encourage forum shopping and undermine the NGA.

The statute authorizes any proceeding by an

aggrieved party to proceed in either “the court of

appeals of the United States for any circuit wherein

the natural-gas company . . . has its principal place of

business, or in the United States Court of Appeals for

the District of Columbia.” 15 U.S.C. § 717r(b)

(emphasis added). In other words, every suit

challenging FERC action can be brought in the

District of Columbia Circuit, and now every plaintiff

filing such a suit has an incentive to do so. Contrary

to the NGA, this split will take cases away from the

Fourth Circuit and funnel them into the District of

Columbia Circuit.

Additionally, the eminent domain power granted

to the natural gas industry has wide-reaching

implications. There are about three million miles of

natural gas pipeline in the United States. Natural

Gas Explained, U.S. Energy Info. Admin. (Mar. 19,

2024), https://www. eia.gov/energyexplained/naturalgas/natural-gas-pipelines.php. The United States is

the world’s largest liquefied natural gas exporter,

exporting 11.9 billion cubic feet per day in 2024. 9 New

pipeline projects added 6.5 billion cubic feet of

takeaway capacity in 2024 alone. 10 Natural gas is

responsible for 43% of U.S. electricity, is the largest

source of home heating in the U.S., supplies 25% of

global primary energy, and has been the fastest

growing source of energy over the last 15 years. Chris

Wright, Sec. of Energy, U.S. Dept. of Energy, Keynote

Remarks at CERAWeek 2025 (Mar. 10, 2025).

Accordingly, the Fourth Circuit’s error risks

widespread unconstitutional deprivations of property

across countless affected landowners. At the same

time, the industry is growing; if the Fourth Circuit’s

9 Victoria Zaretskaya, The United States remained the

world’s largest natural gas exporter in 2024, U.S. Energy Info.

Admin.

(March

27,

2025),

https://www.eia.gov/todayinenergy/detail.php?id=64844&utm.

10 Katy Fleury, Natural gas pipeline project completions

increase takeaway capacity in producing regions, U.S. Energy

Info.

Admin.

(March

17,

2025),

https://www.eia.gov/todayinenergy/detail.php?id=64744&utm.

deference was improper, and if FERC’s regulations

are unconstitutional, all parties involved would

benefit from this Court’s swift action so that the

infirmities can be rectified as quickly as possible. This

Court has recognized the importance of natural gas

regulations by granting a writ of certiorari in a

natural gas case as recently as 2021. See PennEast

Pipeline Co., LLC v. New Jersey, 594 U.S. 482 (2021).

Moreover, the deprivations occurring under

FERC’s regulations are unlikely to stop absent

intervention of this Court because there is no judicial

review whatsoever of the regulations, so nothing short

of a constitutional attack on the scheme has any

chance of success. Cases involving Blanket

Certificates typically occur after the Certificates have

been issued (and long after the window to challenge

them has closed) in the context of a private natural

gas company condemning land. The natural gas

company typically moves for, and is granted, an early

preliminary injunction for immediate entry, while the

district court reserves on the issue of compensation. 11

See, e.g., the Florida Gas Transmission cases: 707 F. Supp.

3d 1258, 1264 (M.D. Fla. 2023); No. 23-CV-612, 2023 WL

8716597, at *6 (M.D. Fla. Dec. 18, 2023); No. 18-CV-3059, 2019

WL 2613337 (M.D. Fla. Mar. 12, 2019); No. 18-CV-3062, 2019

WL 1371492, at *2 (M.D. Fla. Mar. 11, 2019); the UGI Sunbury

cases: No. 16-CV-00791, 2016 WL 4089126, at *6 (M.D. Pa. Aug.

2, 2016); No. 16-CV-00788, 2016 WL 4089120, at *6 (M.D. Pa.

Aug. 2, 2016); No. 16-CV-00790, 2016 WL 4089124, at *6 (M.D.

Pa. Aug. 2, 2016); No. 16-CV-00793, 2016 WL 3254987, at *6

(M.D. Pa. June 14, 2016); No. 16-CV-00783, 2016 WL 3254986,

at *7 (M.D. Pa. June 14, 2016); No. 16-CV-00801, 2016 WL

3254991, at *9 (M.D. Pa. June 14, 2016); No. 3:16-CV-00798,

2016 WL 3254988, at *9 (M.D. Pa. June 14, 2016); N. Nat. Gas

These suits typically involve unsophisticated

defendants and concern dollar amounts which,

individually, are far lower than the cost of litigating

and appealing complex constitutional issues. Thus,

these landowners are essentially presented with a fait

accompli, and the prospect of further litigation is

particularly unappetizing. See generally Allegheny

Def. Project, 964 F.3d at 10 (collecting examples

where FERC used administrative hurdles to allow

construction to proceed and moot landowners’ claims).

And where two appeals finally did implicate

constitutional issues, two circuit courts of appeals

declined to reach them. See RDFS, 24-1530 [ECF No.

29] (deferring to FERC without comment); Columbia

Gas, 768 F.3d at 313 (“[T]his constitutional

argument . . . is not properly before us.”). In sum,

there is a confluence of factors here that make it

difficult for any individual to vindicate these rights.

As such, it is a near-certainty that these

constitutional violations will continue in the absence

of this Court’s intervention.

The Fourth Circuit’s opinion was also manifestly

contrary to this Court’s precedents. Specifically, the

Co. v. Easement & Right-of-way Across 33.523 Acres More or

Less, No. 23-CV-1906, 2023 WL 4936163, at *3 (D. Minn. Aug. 2,

2023); WBI Energy Transmission, Inc. v. Easement and Rightof-Way Across Twp. 2 S., No. 14-CV-130, 2017 WL 532281, at *4

(D. Mont. Feb. 8, 2017); Sabal Trail Transmission, LLC v. +/- 0.4

Acres of Land in Marion Cnty., No. 16-CV-210, 2016 WL

2997672, at *5 (M.D. Fla. May 25, 2016); Columbia Gas

Transmission, LLC v. 10.5068 Acres, More or Less in York Cnty.,

No. 15-CV-0360, 2015 WL 3831181, at *1 (M.D. Pa. June 19,

2015); E. Tennessee Nat. Gas Co. v. Sage, 361 F.3d 808, 828 (4th

Cir. 2004).

Fourth Circuit gave its imprimatur to an agencycreated scheme which grants to private entities the

virtually unlimited authority to condemn property in

the name of the government, with no regard for due

process or whether such taking is for private or public

use. The Fourth Circuit declined to directly consider

these issues and, instead, simply deferred to FERC’s

interpretation of FERC’s power without discussion.

Thus, the Fourth Circuit’s opinion is directly contrary

not only to this Court’s precedents regarding due

process and takings, but also on the consideration of

agency interpretations of agency power.

At its core, the Fourth Circuit’s error here

undermines the separation of powers between the

executive and judicial branches. Court review of

agency action (or lack thereof) has been a recurring

issue

this

Court’s

administrative

law

jurisprudence. See, e.g., Baldwin v. United States, 140

S. Ct. 690, 691–95 (2020) (Thomas, J., dissenting from

denial of cert.) (discussing at length agency deference,

separation of powers, and historical practice); Loper

Bright, 603 U.S. at 415 (Thomas, J., concurring)

(“Because the judicial power requires judges to

exercise their independent judgment, the deference

that Chevron requires contravenes Article III’s

mandate.”). This Court attempted to finally put that

issue to rest last year in Loper Bright. See 603 U.S. at

412. The fact that less than a year later the Fourth

Circuit deferred on an issue that, under Loper Bright,

categorically belongs to the court, shows that there

must be some confusion in the lower courts about

agency deference and the extent of the holding in

Loper Bright.

This Court should grant review because Blanket

Certificates are incompatible with the Fifth

Amendment, inject uncertainty into the federal courts

and into an area of national interest, and because the

Fourth Circuit refused to even consider these issues

and instead deferred to an agency.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

JOY D. LLAGUNO

Counsel of Record

PHILLIP C. HOOK

MATTHEW R. MILLER

GERALD S. ATKINS

HOOK & HOOK PLLC

430 East Oakview Dr.

Suite 101

Waynesburg, PA 15370

(724) 824-3302

jllaguno@hooklaw.com

June 6, 2025

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

A PPEN DI X A — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED

JANUARY 8, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — DENIAL OF REHEARING

OF THE FEDERA L ENERGY

REGULATORY COMMISSION, FILED

APRIL 11, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2a

APPENDIX C — REJECTION OF REHEARING

AND DENIAL OF LATE INTERVENTION

OF THE FEDERA L ENERGY

REGULATORY COMMISSION, DATED

FEBRUARY 7, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . 3a

A PPEN DI X D — FI N DI NG S A N D

ORDER OF THE FEDERA L ENERGY

REGULATORY COMMISSION, DATED

JANUARY 7, 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6a

APPENDIX E — CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED . . . . . . 12a

Appendix

A UNITED STATES

APPENDIX A — ORDER

OF THE

COURT OF APPEALS FOR THE FOURTH CIRCUIT,

FILED JANUARY 8, 2025

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 24-1530

(CP83-76-009)

RDFS, LLC,

Petitioner,

FEDERAL ENERGY REGULATORY COMMISSION,

Respondent,

COLUMBIA GAS TRANSMISSION, LLC,

Intervenor.

ORDER

Upon consideration of the submissions relative to

respondent’s motion to dismiss the appeal for lack of

jurisdiction and intervenor’s motion to reply to the motion

to dismiss, the court grants the motions.

Entered at the direction of Judge Gregory with the

concurrence of Judge Thacker and Judge Richardson.

For the Court

/s/ Nwamaka Anowi, Clerk

APPENDIX B —Appendix

DENIALAOF REHEARING

OF THE FEDERAL ENERGY REGULATORY

COMMISSION, FILED APRIL 11, 2024

187 FERC ¶ 62,027

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Columbia Gas Transmission Corporation

Docket No. CP83-76-009

NOTICE OF DENIAL OF REHEARING BY

OPERATION OF LAW

(April 11, 2024)

Rehea r ing has been timely requested of the

Commission’s Notice issued on February 7, 2024, in this

proceeding by the Acting Secretary of the Commission’s

Office of the Secretary. Columbia Gas Transmission

Corp., 186 FERC ¶ 62,052 (2024).

In the absence of Commission action on a request

for rehearing within 30 days from the date it is filed, the

request for rehearing may be deemed to have been denied.

15 U.S.C. § 717r(a); 18 C.F.R. § 385.713(f) (2023); Allegheny

Def. Project v. FERC, 964 F.3d 1 (D.C. Cir. 2020) (en banc).

Debbie-Anne A. Reese,

Acting Secretary.

Appendix C OF REHEARING

APPENDIX C — REJECTION

AND DENIAL OF LATE INTERVENTION OF

THE FEDERAL ENERGY REGULATORY

COMMISSION, DATED FEBRUARY 7, 2024

186 FERC ¶ 62,052

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Columbia Gas Transmission Corporation

Docket No. CP83-76-008

NOTICE REJECTING REQUEST FOR REHEARING

AND DENYING LATE INTERVENTION

(February 7, 2024)

On January 7, 1983, in Docket No. CP83-76-000,

the Commission issued a blanket certificate of public

convenience and necessity under Part 157 of the

Commission’s regulations to Columbia Gas Transmission

Corporation (Columbia).1 On January 24, 2024, RDFS,

LLC filed a request for rehearing of the Blanket

Certificate Order and a late motion to intervene in Docket

No. CP83-76-000.

Pursuant to section 19(a) of the Natural Gas Act, 2 an

aggrieved party must file a request for rehearing within

30 days after the issuance of a Commission decision, in

1. Columbia Gas Transmission Corp., 22 FERC ¶ 62,029

(1983) (delegated order) (Blanket Certificate Order).

2. 15 U.S.C. § 717r(a).

Appendix C

this case no later than February 7, 1983. 3 Because the 30day rehearing deadline is statutorily based, it cannot be

waived or extended,4 and the request for rehearing filed

by RDFS, LLC must be rejected as untimely.

Additionally, the purpose of inter vening in a

Commission proceeding is to obtain party status, which

entitles the intervenor to file a request for rehearing

of any final order issued in the proceeding and to seek

judicial review of such orders. 5 As the time period to file

a request for rehearing in Docket No. CP83-76-000 has

passed, granting movant intervenor status would gain it

nothing. Accordingly, the motion to intervene is denied.

This notice constitutes final agency action. Requests

for rehearing by the Commission of this notice must be

filed within 30 days of its issuance, pursuant to section

19(a) of the Natural Gas Act, 15 U.S.C. § 717r, and section

3. The Commission’s Rules of Practice and Procedure

provide that, if a filing deadline falls on a Saturday, Sunday,

holiday, or other day when the Commission is not open for business,

the filing deadline does not end until the close of business on the

next business day. 18 C.F.R. § 385.2007(a)(2). Because the end of

the 30-day time period fell on a Sunday (February 6, 1983), the

deadline was the close of business on Monday, February 7, 1983.

4. Jordan Cove Energy Project L.P., 171 FERC ¶ 61,136, at

P 13 (2020) (“Because the 30-day rehearing deadline is a statutory

requirement, it cannot be waived or extended”); Calpine Corp.,

171 FERC ¶ 61,035, at P 6 (2020) (same).

5. See City of Orrville, Ohio v. FERC, 147 F.3d 979, 984 n.3

(D.C. Cir. 1998).

Appendix C

385.713 of the Commission’s regulations, 18 C.F.R.

§ 385.713 (2023).

Debbie-Anne A. Reese,

Acting Secretary.

Appendix D AND ORDER OF

APPENDIX D — FINDINGS

THE FEDERAL ENERGY REGULATORY

COMMISSION, DATED JANUARY 7, 1983

Columbia Gas Transmission Corporation

Docket No. CP83-76-000

FEDERAL ENERGY REGULATORY COMMISSION Office Director

2 2 F.E.R.C. P62 ,029; 1983 FERC LEXIS 1099

Findings and Order After Statutory Hearing Issuing

Certificate of Public Convenience and Necessity

Authorizing Routine Activities and Permitting

and Approving Abandonment

January 7, 1983

CORE TERMS: certificate, abandonment, authorization,

public convenience, Natural Gas Act, blanket, notice,

regulations, budget-type, permission, abandon, time to

time, jurisdictional, conditioned, thereunder, authorize,

effective, surrender, routine, protest, storage

PANEL: [**1]

Kenneth A. Williams, Director, Office of Pipeline and

Producer Regulation.

OPINION: [*63,052]

Appendix D

On November 9, 1982, Columbia Gas Transmission

Corporation (Applicant), n l filed in Docket No. CP83-76000 an application, as supplemented December 1, 1982,

pursuant to Section 7 of the Natural Gas Act to obtain

a blanket certificate of public convenience and necessity

authorizing certain routine activities and permission and

approval to abandon certain service and facilities specified

in Subpart F of Part 157 of the Commission’s Regulations,

as more fully set forth in the application.

n l Applicant, a Delaware corporation having its

principal place of business in Charleston, West Virginia, is

a “natural-gas company” within the meaning of the Natural

Gas Act as heretofore found by order issued March 10,

1971, in Docket No. CP71-132 (45 FPC 398). [*63,053]

Order No. 234 [FERC Statutes and Regulations

P30,368], established a blanket certificate and abandonment

program which permits Applicant to obtain a one-time

certificate of public convenience and necessity to authorize

a variety of jurisdictional activities and permission and

approval to abandon, which would otherwise require

separate certificate or abandonment [**2] authority in

each instance. Under the authorization issued to Applicant

herein, Applicant will be authorized to conduct many

routine activities and abandon facilities and service on

a self-implementing basis without further authorization

by the Commission. n2 For other categories of activities,

n3 which may potentially require more scrutiny and

opportunity for public participation, this authorization is

subject to the notice procedme specified in Section 157.205.

n4 Both categories of activities have been shown to serve

Appendix D

the public interest, and for the reasons stated in Order No.

234, a certificate and abandonment authorization will be

issued to the Applicant to authorize the specified activities,

subject to the procedural and reporting requirements of

that order.

n2 See 18 C.F.R. § 157.203(b).

n3 See 18 C.F.R. § 157.203(c).

n4 Persons having a potential interest in such

transactions are on notice to monitor the Federal Register.

Once a deadline established under Section 157.205(d)

passes without a protest being filed, the proposed activity

is authorized under this order without further action by

the Commission.

Order No. 234 contemplated an orderly transition [**3]

from the Commission’s budget- type certificate program

(18 C.F.R. § 157.7) to the blanket certificate program.

Accordingly, Applicant states that it will surrender the

following certificates and abandonment authorization,

effective upon its acceptance of this certificate:

Docket No.

Date Issued

CP80-114

February 19, 1980

CP82-92-000 February 19, 1982

CP82-93-000 February 25, 1982

Citation

10 FERC P62,141

18 FERC P62,291

18 FERC P62,357

The Commission does not deem the surrender of the

budget-type certificate at the time of acceptance of the

blanket certificate as revocation of the budget-type

Appendix D

authorization for previously undertaken projects. We

note that Applicant must still file a rmal report for the

budget-type certificate, as provided by Section 157.7 of

the Regulations.

Currently, Applicant does not perform a jurisdictional

storage service. Therefore, before Section 157.213 storage

service may be provided by Applicant, applicable rates

must be established.

Applicant also certifies that it will design, install,

inspect, test, construct, operate, replace, and maintain the

facilities authorized under this certificate in accordance

with Federal safety [**4] standards and plans for

maintenance and inspection.

For the reasons discussed in Order No. 234, and in

the Environmental Assessment issued on July 1, 1981, the

activities authorized by this certificate do not constitute

a major Federal action significantly affecting the quality

of the human environment.

After due notice by publication in the Federal Register

on December 9, 1982 (47 Fed. Reg. 55415), no petitions

to intervene, notices of intervention, or protests to the

granting of the application have been filed

At a hearing held on January 7, 1983, there was

received and made a part of the record in this proceeding

all evidence, including the application, submitted in

support of the authorization sought herein, and upon

consideration of the record,

10a

Appendix D

It is found:

(1) Applicant is able and willing properly to do

the acts and to perform the service proposed and to

conform to the provisions of the Natural Gas Act and the

requirements, rules, and regulations of the Commission

thereunder.

(2) The construction, acquisition, and operation of

facilities and the transportation and sale of natural gas

are required by the public convenience and necessity and

a certificate therefor should [**5] be issued as hereinafter

ordered and conditioned.

(3) The abandonment proposed by Applicant is

permitted by the public convenience and necessity and

should be approved as hereinafter ordered.

Pursuant to the authority delegated by 18 C.F.R.

375.307, it is ordered:

(A) Upon the terms and conditions of this order, a

certificate of public convenience and necessity is issued

authorizing Applicant to perform the activities specified

in Subpart F of Part 157 of the Commission’s Regulations,

as amended from time to time.

(B) Upon the terms and conditions of this order,

permission for and approval of the abandonment by

Applicant of service and facilities specified in Subpart F

of Part 157 of the Commission’s Regulations, as amended

from time to time, are granted.

11a

Appendix D

the abandonment authorized by paragraph (B) above,

and the rights granted thereunder are conditioned upon

Applicant’s compliance with all applicable Commission

[*63,054] Regulations under the Natural Gas Act and

particularly Section 157.206 and paragraphs (a) and (e)

of Section 157.20 of the such Regulations.

(D) The construction authority included in the

certificates issued in Docket [**6] Nos. CP80-l l 4, CP8292-000, and in CP82-93-000, and abandonment authority

in Docket No. CP82-93-000 are hereby terminated

effective upon the date of Applicant’s acceptance of this

certificate.

12a

APPENDIX E —Appendix

CONSTITUTIONAL

AND

STATUTORY PROVISIONS INVOLVED

U.S. Const. Amend. V provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

15 U.S.C. § 717f provides:

(a) Extension or improvement of facilities on

order of court; notice and hearing

Whenever the Commission, after notice and opportunity

for hearing, finds such action necessary or desirable in

the public interest, it may by order direct a natural-gas

company to extend or improve its transportation facilities,

to establish physical connection of its transportation

facilities with the facilities of, and sell natural gas to, any

person or municipality engaged or legally authorized to

engage in the local distribution of natural or artificial

gas to the public, and for such purpose to extend its

transportation facilities to communities immediately

adjacent to such facilities or to territory served by such

natural-gas company, if the Commission finds that no

13a

Appendix E

undue burden will be placed upon such natural-gas

company thereby: Provided, That the Commission

shall have no authority to compel the enlargement of

transportation facilities for such purposes, or to compel

such natural-gas company to establish physical connection

or sell natural gas when to do so would impair its ability

to render adequate service to its customers.

(b) Abandonment of facilities or services; approval

of Commission

No natural-gas company shall abandon all or any portion of

its facilities subject to the jurisdiction of the Commission,

or any service rendered by means of such facilities,

without the permission and approval of the Commission

first had and obtained, after due hearing, and a finding by

the Commission that the available supply of natural gas

is depleted to the extent that the continuance of service

is unwarranted, or that the present or future public

convenience or necessity permit such abandonment.

(c)

Certificate of public convenience and necessity

(1)(A) No natural-gas company or person which

will be a natural-gas company upon completion of

any proposed construction or extension shall engage

in the transportation or sale of natural gas, subject

to the jurisdiction of the Commission, or undertake

the construction or extension of any facilities

therefor, or acquire or operate any such facilities

or extensions thereof, unless there is in force with

respect to such natural-gas company a certificate

14a

Appendix E

of public convenience and necessity issued by the

Commission authorizing such acts or operations:

Provided, however, That if any such natural-gas

company or predecessor in interest was bona fide

engaged in transportation or sale of natural gas,

subject to the jurisdiction of the Commission, on

February 7, 1942, over the route or routes or within

the area for which application is made and has so

operated since that time, the Commission shall

issue such certificate without requiring further

proof that public convenience and necessity will

be served by such operation, and without further

proceedings, if application for such certificate is

made to the Commission within ninety days after

February 7, 1942. Pending the determination of any

such application, the continuance of such operation

shall be lawful.

(B) In all other cases the Commission shall set

the matter for hearing and shall give such reasonable

notice of the hearing thereon to all interested persons

as in its judgment may be necessary under rules and

regulations to be prescribed by the Commission;

and the application shall be decided in accordance

with the procedure provided in subsection (e) of

this section and such certificate shall be issued or

denied accordingly: Provided, however, That the

Commission may issue a temporary certificate

in cases of emergency, to assure maintenance of

adequate service or to serve particular customers,

without notice or hearing, pending the determination

of an application for a certificate, and may by

15a

Appendix E

regulation exempt from the requirements of this

section temporary acts or operations for which the

issuance of a certificate will not be required in the

public interest.

(2) The Commission may issue a certificate

of public convenience and necessity to a naturalgas company for the transportation in interstate

commerce of natural gas used by any person for one

or more high-priority uses, as defined, by rule, by the

Commission, in the case of—

(A) natural gas sold by the producer to such

person; and

(B)

natural gas produced by such person.

(d) Application for certificate of public convenience

and necessity

Application for certificates shall be made in writing to

the Commission, be verified under oath, and shall be in

such form, contain such information, and notice thereof

shall be served upon such interested parties and in such

manner as the Commission shall, by regulation, require.

(e) Granting of certificate of public convenience

and necessity

Except in the cases governed by the provisos contained

in subsection (c)(1) of this section, a certificate shall be

issued to any qualified applicant therefor, authorizing

16a

Appendix E

the whole or any part of the operation, sale, service,

construction, extension, or acquisition covered by the

application, if it is found that the applicant is able and

willing properly to do the acts and to perform the service

proposed and to conform to the provisions of this chapter

and the requirements, rules, and regulations of the

Commission thereunder, and that the proposed service,

sale, operation, construction, extension, or acquisition,

to the extent authorized by the certificate, is or will be

required by the present or future public convenience and

necessity; otherwise such application shall be denied. The

Commission shall have the power to attach to the issuance

of the certificate and to the exercise of the rights granted

thereunder such reasonable terms and conditions as the

public convenience and necessity may require.

(f) Determination of service area; jurisdiction of

transportation to ultimate consumers

(1) The Commission, after a hearing had upon

its own motion or upon application, may determine

the service area to which each authorization under

this section is to be limited. Within such service area

as determined by the Commission a natural-gas

company may enlarge or extend its facilities for the

purpose of supplying increased market demands in

such service area without further authorization; and

(2) If the Commission has determined a service

area pursuant to this subsection, transportation

to ultimate consumers in such service area by the

holder of such service area determination, even if

17a

Appendix E

across State lines, shall be subject to the exclusive

jurisdiction of the State commission in the State in

which the gas is consumed. This section shall not

apply to the transportation of natural gas to another

natural gas company.

(g) Certificate of public convenience and necessity

for service of area already being served

Nothing contained in this section shall be construed as

a limitation upon the power of the Commission to grant

certificates of public convenience and necessity for service

of an area already being served by another natural-gas

company.

(h) Right of eminent domain for construction of

pipelines, etc.

When any holder of a certificate of public convenience

and necessity cannot acquire by contract, or is unable to

agree with the owner of property to the compensation

to be paid for, the necessary right-of-way to construct,

operate, and maintain a pipe line or pipe lines for the

transportation of natural gas, and the necessary land or

other property, in addition to right-of-way, for the location

of compressor stations, pressure apparatus, or other

stations or equipment necessary to the proper operation of

such pipe line or pipe lines, it may acquire the same by the

exercise of the right of eminent domain in the district court

of the United States for the district in which such property

may be located, or in the State courts. The practice and

procedure in any action or proceeding for that purpose

in the district court of the United States shall conform

18a

Appendix E

as nearly as may be with the practice and procedure in

similar action or proceeding in the courts of the State

where the property is situated: Provided, That the United

States district courts shall only have jurisdiction of cases

when the amount claimed by the owner of the property to

be condemned exceeds $3,000.

15 U.S.C. § 717r provides:

(a)

Application for rehearing; time

Any person, State, municipality, or State commission

aggrieved by an order issued by the Commission in a

proceeding under this chapter to which such person,

State, municipality, or State commission is a party may

apply for a rehearing within thirty days after the issuance

of such order. The application for rehearing shall set

forth specifically the ground or grounds upon which such

application is based. Upon such application the Commission

shall have power to grant or deny rehearing or to abrogate

or modify its order without further hearing. Unless the

Commission acts upon the application for rehearing

within thirty days after it is filed, such application may

be deemed to have been denied. No proceeding to review

any order of the Commission shall be brought by any

person unless such person shall have made application to

the Commission for a rehearing thereon. Until the record

in a proceeding shall have been filed in a court of appeals,

as provided in subsection (b), the Commission may at any

time, upon reasonable notice and in such manner as it shall

deem proper, modify or set aside, in whole or in part, any

finding or order made or issued by it under the provisions

of this chapter.

19a

Appendix E

(b)

Review of Commission order

Any party to a proceeding under this chapter

aggrieved by an order issued by the Commission in such

proceeding may obtain a review of such order in the court

of appeals of the United States for any circuit wherein the

natural-gas company to which the order relates is located

or has its principal place of business, or in the United

States Court of Appeals for the District of Columbia,

by filing in such court, within sixty days after the order

of the Commission upon the application for rehearing, a

written petition praying that the order of the Commission

be modified or set aside in whole or in part. A copy of such

petition shall forthwith be transmitted by the clerk of the

court to any member of the Commission and thereupon

the Commission shall file with the court the record upon

which the order complained of was entered, as provided

in section 2112 of Title 28. Upon the filing of such petition

such court shall have jurisdiction, which upon the filing

of the record with it shall be exclusive, to affirm, modify,

or set aside such order in whole or in part. No objection

to the order of the Commission shall be considered by

the court unless such objection shall have been urged

before the Commission in the application for rehearing

unless there is reasonable ground for failure so to do. The

finding of the Commission as to the facts, if supported by

substantial evidence, shall be conclusive. If any party shall

apply to the court for leave to adduce additional evidence,

and shall show to the satisfaction of the court that such

additional evidence is material and that there were

reasonable grounds for failure to adduce such evidence

in the proceedings before the Commission, the court may

order such additional evidence to be taken before the

20a

Appendix E

Commission and to be adduced upon the hearing in such

manner and upon such terms and conditions as to the

court may seem proper. The Commission may modify its

findings as to the facts by reason of the additional evidence

so taken, and it shall file with the court such modified or

new findings, which is supported by substantial evidence,

shall be conclusive, and its recommendation, if any, for the

modification or setting aside of the original order. The

judgment and decree of the court, affirming, modifying,

or setting aside, in whole or in part, any such order of

the Commission, shall be final, subject to review by the

Supreme Court of the United States upon certiorari or

certification as provided in section 1254 of Title 28.

(c)

Stay of Commission order

The filing of an application for rehearing under

subsection (a) shall not, unless specifically ordered by the

Commission, operate as a stay of the Commission’s order.

The commencement of proceedings under subsection (b)

of this section shall not, unless specifically ordered by the

court, operate as a stay of the Commission’s order.

(d)

Judicial review

(1)

In general

The United States Court of Appeals for the

circuit in which a facility subject to section 717b

of this title or section 717f of this title is proposed

to be constructed, expanded, or operated shall

have original and exclusive jurisdiction over any

civil action for the review of an order or action of a

21a

Appendix E

Federal agency (other than the Commission) or State

administrative agency acting pursuant to Federal

law to issue, condition, or deny any permit, license,

concurrence, or approval (hereinafter collectively

referred to as “permit”) required under Federal

law, other than the Coastal Zone Management Act

of 1972 (16 U.S.C. 1451 et seq.).

(2)

Agency delay

The United States Court of Appeals for the

District of Columbia shall have original and exclusive

jurisdiction over any civil action for the review of

an alleged failure to act by a Federal agency (other

than the Commission) or State administrative agency

acting pursuant to Federal law to issue, condition,

or deny any permit required under Federal law,

other than the Coastal Zone Management Act of

1972 (16 U.S.C. 1451 et seq.), for a facility subject to

section 717b of this title or section 717f of this title.

The failure of an agency to take action on a permit

required under Federal law, other than the Coastal

Zone Management Act of 1972, in accordance with

the Commission schedule established pursuant

to section 717n(c) of this title shall be considered

inconsistent with Federal law for the purposes of

paragraph (3).

(3)

Court action

If the Court finds that such order or action

is inconsistent with the Federal law governing

22a

Appendix E

such permit and would prevent the construction,

expansion, or operation of the facility subject to

section 717b of this title or section 717f of this title,

the Court shall remand the proceeding to the agency

to take appropriate action consistent with the order

of the Court. If the Court remands the order or action

to the Federal or State agency, the Court shall set

a reasonable schedule and deadline for the agency

to act on remand.

(4)

Commission action

For any action described in this subsection, the

Commission shall file with the Court the consolidated

record of such order or action to which the appeal

hereunder relates.

(5)

Expedited review

The Court shall set any action brought under this

subsection for expedited consideration.

18 C.F.R. § 157.201 provides:

(a) Scope. This subpart establishes a procedure

whereby an interstate pipeline may obtain a blanket

certificate authorizing certain construction and operation

of facilities and certain certificate amendments and

abandonment under section 7 of the Natural Gas Act.

(b) Who may apply. This procedure is only applicable

to interstate pipelines.

23a

Appendix E

transportation by interstate pipelines under blanket

certificates are set forth in subpart G of part 284 of this

chapter.

(d) Availability of case-specific certificates. Nothing

in this subpart shall preclude an interstate pipeline

from proceeding under any other provision of the

Commission’s regulations to obtain Commission approval

of abandonments or a temporary or permanent certificate

of public convenience and necessity.

18 C.F.R. § 157.203 provides:

(a) Effect. A blanket certificate issued pursuant

to this subpart authorizes the certificate holder, in

accordance with the provisions of this subpart, to engage

in any of the activities specified in § 157.208 through

§ 157.218 (as may be amended from time to time).

(b) Automatic authorization. A blanket certificate

issued pursuant to this subpart authorizes the certificate

holder to engage in transactions described in § 157.208(a),

§ 157.209(a), § 157.211(a)(1), § 157.213(a), § 157.215,

§ 157.216(a), or § 157.218 without further Commission

approval.

issued pursuant to this subpart authorizes the certificate

holder to engage in activities described in § 157.208(b),

§ 157.210, § 157.211(a)(2), § 157.212, § 157.213(b), § 157.214,

or § 157.216(b), if the requirements of § 157.205 have been

fulfilled.

24a

Appendix E

(d)

Landowner notification.

(1) Except as identified in paragraph (d)(3) of

this section, no activity described in paragraph (b) of

this section is authorized unless the company makes

a good faith effort to notify, in writing all affected

landowners, as defined in § 157.6(d)(2), at least 45

days prior to commencing construction or at the

time it initiates easement negotiations, whichever

is earlier. A landowner may waive the 45–day prior

notice requirement in writing as long as the notice

has been provided. For activity required to restore

service in an emergency, the 45–day prior notice

period is satisfied in the event a company obtains all

necessary easements. The notification shall include

at least:

(i) A brief description of the facilities to

be constructed or replaced and the effect the

construction activity will have on the landowner’s

property;

(ii) The name and phone number of a

company representative who is knowledgeable about

the project;

(i i i) A de sc r ipt ion of t he compa ny ’s

environmental complaint resolution procedure that

must:

(A) Provide landowners with clear and

simple directions for identifying and resolving

their environmental mitigation problems and

25a

Appendix E

concerns during construction of the project and

restoration of the right-of way;

(B) Provide a local or toll-free phone

number and a name of a specific person

to be contacted by landow ners and w ith

responsibility for responding to landowner

problems and concerns, and who will indicate

when a landowner should expect a response;

not satisfied with the response, they may call

the company’s Hotline; and

(D) Instruct landowners that, if they

are still not satisfied with the response, they

may contact the Commission’s Landowner

Helpline at the current telephone number and

email address, which is to be provided in the

notification.

(2) For activities described in paragraph (c)

of this section, the company shall make a good faith

effort to notify in writing all affected landowners, as

defined in § 157.6(d)(2), within at least three business

days following the date that a docket number is

assigned to the application or at the time it initiates

easement negotiations, whichever is earlier. The

notice should include at least:

(i) A brief description of the company and

the proposed project, including the facilities to be

26a

Appendix E

constructed or replaced and the location (including

a general location map), the purpose, and the timing

of the project and the effect the construction activity

will have on the landowner’s property;

(ii) A general description of what the

company will need from the landowner if the project

is approved, and how the landowner may contact the

company, including a local or toll-free phone number

and a name of a specific person to contact who is

knowledgeable about the project;

(iii) The docket number (if assigned) for the

company’s application;

(iv) A general description of the blanket

certificate program and procedures, as posted

on the Commission’s Web site at the time the

landowner notification is prepared, and the link to

the information on the Commission’s Web site;

(v) A brief summary of the rights the

landowner has in Commission proceedings and in

proceedings under the relevant eminent domain

rules; and

(vi) The following paragraph: This project is

being proposed under the prior notice requirements

of the blanket certificate program administered

by the Federal Energy Regulatory Commission.

Under the Commission’s regulations, you have the

right to protest this project within 60 days of the

27a

Appendix E

date the Commission issues a notice of the pipeline’s

filing. If you file a protest, you should include the

docket number listed in this letter and provide

the specific reasons for your protest. The protest

should be mailed to the Secretary of the Federal

Energy Regulatory Commission, 888 First St., NE.,

Room 1A, Washington, DC 20426. A copy of the

protest should be mailed to the pipeline at [pipeline

address]. If you have any questions concerning these

procedures you can call the Commission’s Office of

External Affairs at (202) 208–1088; and

(vii) The description of the company’s

environmental complaint resolution procedure as

described in paragraph (d)(1)(iii) of this section.

(3)

Exceptions.

(i) No landowner notice is required for

replacements which would have been done under

§ 2.55 of this chapter but for the fact that the

replacement facilities are not of the same capacity

as long as they meet the location requirements of

§ 2.55(b)(1)(ii) of this chapter and do not cause any

ground disturbance; or any replacement done for

safety, DOT compliance, environmental, or unplanned

maintenance reasons that are not foreseen and that

require immediate attention by the certificate holder.

(ii) No landowner notice is required for

abandonments which involve only the sale or transfer

of the facilities, and the easement will continue to be

used for transportation of natural gas.

28a

Appendix E

(iii) No landowner notice is required if

there is only one landowner and that landowner has

requested the service or facilities.

(iv) No landowner notice is required for

activities that do not involve ground disturbance or

changes to operational air and noise emissions.

(4) If paragraphs (d)(1) or (d)(2) of this section

require an applicant to reveal Critical Energy

Infrastructure Information (CEII), as defined

by § 388.113(c) of this chapter, to any person, the

applicant shall follow the procedures set out in

§ 157.10(d).

18 C.F.R. § 157.208 provides, in relevant part:

(a) Automatic authorization. If the project cost does

not exceed the cost limitations set forth in column 1 of

table 1 to paragraph (d) of this section, or if the project

is required to restore service in an emergency, the

certificate holder is authorized to make miscellaneous

rearrangements of any facility, or acquire, construct,

replace, or operate any eligible facility. The certificate

holder shall not segment projects in order to meet the cost

limitations set forth in column 1 of table 1 to paragraph (d).

(b) Prior notice. If the project cost is greater than

the amount specified in column 1 of table 1 to paragraph

(d) of this section, but less than the amount specified in

column 2 of table 1 to paragraph (d), the certificate holder

is authorized to make miscellaneous rearrangements of

29a

Appendix E

any facility, or acquire, construct, replace, or operate any

eligible facility. The certificate holder shall not segment

projects in order to meet the cost limitations set forth in

column 2 of table 1 to paragraph (d).

requirements of § 157.205(b), requests filed for activities

described under paragraph (b) of this section shall contain:

(1) A description of the purpose of the proposed

facilities including their relationship to other existing

or planned facilities;

(2) A detailed description of the proposed

facilities specifying length, diameter, wall thickness

and maximum operating pressure for pipeline;

and for compressors, the size, type, and number of

compressor units, horsepower required, horsepower

existing and proposed, volume of fuel gas, suction and

discharge pressure and compression ratio;

(3) A USGS 7 ½ minute series (scale 1:24000)

topographic map (or map of equivalent or greater

detail, as appropriate) showing the location of the

proposed facilities, and indicating the location of any

sensitive environmental areas within one-quarter

mile of project-related construction activities;

(4) A map showing the relationship of the

proposed facilities to the applicant’s existing

facilities;

30a

Appendix E

(5) A f low diagram or comparative study

showing daily design capacity, daily maximum

capacity and operating pressures with and without

the proposed facilities for that portion of the

certificate holder’s system affected by the proposal;

(6) The estimated cost and method of financing

the proposed facilities;

(7) A statement explaining how the public

convenience and necessity requires the approval of

the project;

(8)

For acquisitions of facilities:

(i) A statement referencing the date of

issuance, docket number and title of the proceeding

for any certificate issued by the Commission

authorizing the facilities proposed to be acquired;

and

(ii) The amounts recorded in the accounts

of the vendor (seller or lessor) that apply to

the facilities proposed to be acquired and the

accumulated provisions for depreciation, depletion,

and amortization;

(9) A concise analysis discussing the relevant

issues outlined in § 380.12 of this chapter. The

analysis must identify the existing environmental

conditions and the expected significant impacts that

the proposed action, including proposed mitigation

31a

Appendix E

measures, will cause to the quality of the human

environment, including impact expected to occur to

sensitive environmental areas. When compressor

facilities are proposed, the analysis must also

describe how the proposed action will be made to

comply with applicable State Implementation Plans

developed under the Clean Air Act. The analysis

must also include a description of the contacts made,

reports produced, and results of consultations which

took place to ensure compliance with the Endangered

Species Act, National Historic Preservation Act

and the Coastal Zone Management Act. Include

a copy of the agreements received for compliance

with the Endangered Species Act, National Historic

Preservation Act, and Coastal Zone Management

Act, or if no written concurrence is issued, a

description of how the agency relayed its opinion

to the company. Describe how drilling for wells or

horizontal direction drilling would be designed to

meet the goal of limiting the perceived noise at NSAs

to an Ldn of 55 dBA or what mitigation would be

offered to landowners.

(10) A commitment to having the Environmental

Inspector’s report filed every week.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.