Amicus Curiae Brief — Leonard W. Hoffmann, et al., Petitioners v. WBI Energy Transmission, Inc.

No. 25-159

In the Supreme Court of the United States

LEONARD W. HOFFMANN, ET AL., PETITIONERS,

v.

WBI ENERGY TRANSMISSION, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF THE INTERSTATE NATURAL GAS

ASSOCIATION OF AMERICA AND THE

AMERICAN PETROLEUM INSTITUTE AS

AMICI CURIAE IN SUPPORT OF

RESPONDENT

JOAN DRESKIN

INTERSTATE NATURAL

GAS ASSOCIATION OF

AMERICA

25 Massachusetts Ave.,

NW, Suite 500N

Washington, DC 20001

Counsel for Interstate

Natural Gas Association of America

JEREMY C. MARWELL

Counsel of Record

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6507

jmarwell@velaw.com

Counsel for Amici Curiae

(Additional counsel listed inside cover)

GRACE D. SODERBERG

AMERICAN PETROLEUM

INSTITUTE

200 Massachusetts

Ave., NW

Washington, DC 20001

SAMANTHA GARZA

VINSON & ELKINS LLP

200 West 6th St.,

Suite 2500

Austin, TX 78701

Counsel for Amici Curiae

Counsel for American

Petroleum Institute

TABLE OF CONTENTS

Page

Table of Authorities.................................................... II

Interest of Amici Curiae ............................................. 1

Introduction and Summary of Argument ................... 2

Argument ..................................................................... 7

I.

The Eminent Domain Power Is an Essential

Part of the NGA’s Statutory Framework. ........... 7

II. Interstate Natural Gas Pipeline Companies

Are Responsible Stewards of the Federal

Eminent Domain Power and Exercise It Only

as a Last Resort. ................................................ 10

III. Applying State Law to Measure Just

Compensation in Federal Eminent Domain

Actions Would Increase the Length and Cost

of Condemnation Cases and Create

Misaligned Incentives. ....................................... 20

Conclusion ................................................................. 29

(I)

II

TABLE OF AUTHORITIES

Cases:

Page(s)

Almota Farmers Elevator & Warehouse Co. v.

United States, 409 U.S. 470 (1973) ................. 23, 28

Appalachian Voices v. FERC,

139 F.4th 903 (D.C. Cir. 2025) .............................. 16

Atl. Coast Pipeline, LLC v. 0.07 Acre, More or

Less, 396 F. Supp. 3d 628 (W.D. Va. 2019) ........... 24

Commonwealth Transp. Comm’r v. Glass,

613 S.E.2d 411 (Va. 2005) ..................................... 24

DeKalb Cnty. v. Trs., Decatur Lodge No. 1602,

B.P.O. Elks, 251 S.E.2d 243 (Ga. 1978) ................ 21

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

361 F.3d 808 (4th Cir. 2004) ................................. 16

Fla. Se. Connection, LLC v. 0.821 Acres of Land,

More or Less,

223 F. Supp. 3d 1227 (M.D. Fla. 2016) ................. 16

Guardian Pipeline, L.L.C. v. 950.80 Acres of

Land, 210 F. Supp. 2d 976 (N.D. Ill. 2002)........... 16

Joseph B. Doerr Tr. v. Cent. Fla. Expressway

Auth., 177 So. 3d 1209 (Fla. 2015) ........................ 21

Mountain Valley Pipeline, LLC v. 6.56 Acres of

Land, Owned by Sandra Townes Powell,

915 F.3d 197 (4th Cir. 2019) ........................... 13, 19

NAACP v. Fed. Power Comm’n,

425 U.S. 662 (1976)................................................ 28

Nexus Gas Transmission, LLC v. City of Green,

757 Fed. Appx. 489 (6th Cir. 2018) ....................... 10

PennEast Pipeline Co. v. New Jersey,

594 U.S. 482 (2021).............................................. 8, 9

III

Cases—Continued:

Page(s)

Sabal Trail Transmission, LLC v. +/- 1.401

Acres of Land, No. 16-cv-278, 2026 WL 964386

(M.D. Fla. Mar. 27, 2026) ...................................... 13

United States v. 8.929 Acres of Land,

36 F.4th 240 (4th Cir. 2022) .................................. 24

United States v. Bodcaw Co.,

440 U.S. 202 (1979).......................................... 20, 28

USG Pipeline Co. v. 1.74 Acres,

1 F. Supp. 2d 816 (E.D. Tenn. 1998) ............... 10, 18

Constitutional Provisions:

U.S. Const. Amend. V...................................... 5, 22, 23

Fla. Const. art. X, § 6 ................................................ 21

Ga. Const. art. I, § 3, ¶ I............................................ 21

Statutes:

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

15 U.S.C. § 717f(h) ................................................ 2, 12

Fla. Stat. § 73.092 ..................................................... 21

Ga. Code § 22-1-12..................................................... 21

Regulations:

18 C.F.R. § 157.20(b) ................................................. 16

IV

Administrative Materials:

Page(s)

Certification of New Interstate Nat. Gas Pipeline

Facilities, 88 FERC ¶ 61,227 (1999) ..................... 12

Midwestern Gas Transmission Co.,

116 FERC ¶ 61,182 (2006) .................................... 19

Mountain Valley Pipeline, LLC,

163 FERC ¶ 61,197 (2018) .................................... 13

PennEast Pipeline Co.,

164 FERC ¶ 61,098 (2018) ......................................9

Other Authorities:

Amendments to the Natural Gas Act: Hearings on

H.R. 2185, H.R. 2235, H.R. 2292, H.R. 2569,

and H.R. 2956 Before the H. Comm. on

Interstate and Foreign Commerce, 80th Cong.,

1st Sess. (1947) ........................................................8

Comments of the Interstate Natural Gas

Association of America, FERC Docket No.

PL 18-1-000, PL21-3-000 (Apr. 25, 2022)

(Accession No. 20220425-5448) ................... 3, 11, 14

Domina Law Grp., Nebraska Landowner

Litigation Prompts Biden Administration to

End Keystone XL Pipeline (Jan. 19, 2021),

https://bit.ly/4cPKBhb ........................................... 16

Domina Law Grp., TransCanada Keystone XL

Pipeline, https://bit.ly/3VfgjOI .............................. 26

V

Other Authorities—Continued:

Page(s)

Edelman, Gilad, Pipeline Companies Paying

More to Cross Private Land, Tex. Trib. (June

18, 2014) ................................................................. 17

INGAA Foundation, Inc., Report No. 2016.01,

Pipeline Impact to Property Value and Property

Insurability (2016) ................................................. 14

INGAA, Commitments to Landowners (Feb.

2019), https://perma.cc/2KFK-KUD6 .......... 3, 10, 11

Initial Comments of Enbridge Gas Pipelines,

FERC Docket No. PL 18-1-000 (May 26, 2021)

(Accession No. 20210526-5225) ....................... 19, 27

Klass, Alexandra B. & Danielle Meinhardt,

Transporting Oil and Gas: U.S. Infrastructure

Challenges, 100 IOWA L. REV. 947 (2015)................8

Miceli, Thomas J. & C.F. Sirmans, The Holdout

Problem, Urban Sprawl, and Eminent Domain,

16 J. OF HOUS. ECON. 309 (2007) ........................... 15

Posner, Richard A., Economic Analysis of Law

(6th ed. 2003) ......................................................... 15

Prop. Rights & Pipeline Ctr.,

Get a Lawyer, https://perma.cc/4656-N5GF.......... 26

S. Rep. No. 429, 80th Cong., 1st Sess. (1947) .............8

Sever Walker Padgett, Southeast Supply

Enhancement, https://perma.cc/4B6U-BW3V ....... 26

U.S. Energy Info. Admin., U.S. Natural Gas

Consumption Set a Monthly and Yearly Record

in 2025 (Mar. 18, 2026),

https://perma.cc/BG34-GGGL .................................9

INTEREST OF AMICI CURIAE 1

The Interstate Natural Gas Association of America

(“INGAA”) is a national trade association that advocates regulatory and legislative positions of importance to the interstate natural gas pipeline industry in North America. INGAA represents the majority

of interstate natural gas companies in the United

States, which are regulated by the Federal Energy

Regulatory Commission (“FERC”) under the Natural

Gas Act (“NGA”), 15 U.S.C. § 717 et seq. INGAA’s

members transport much of the nation’s natural gas

through a network of approximately 200,000 miles of

pipelines. They have a substantial interest in pipeline

development, continued investment in energy infrastructure, and predictable, consistent, rational, and

fair law and policy affecting natural gas transportation and storage.

The American Petroleum Institute (“API”), a national trade association, represents all aspects of

America’s oil and natural gas industry, which supports nearly 11 million U.S. jobs and is backed by a

growing grassroots movement of millions of Americans. API’s approximately 600 members produce, process, and distribute the majority of the nation’s energy. API was formed in 1919 as a standards-setting

organization and has developed more than 800 standards to enhance operational and environmental

1 Pursuant

to Supreme Court Rule 37.6, amici curiae state

that no counsel for any party authored this brief in whole or in

part and no entity or person, aside from amici curiae, their

members, or their counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

(1)

2

safety,

efficiency

https://www.api.org/.

and

sustainability.

See

Amici have an interest in this case because applying federal law to measure just compensation when a

natural gas company exercises the federal power of

eminent domain under the Natural Gas Act will ensure uniformity, consistency, and fairness for pipeline

companies and landowners alike. FERC-regulated

pipeline projects are part of a broader network of interstate infrastructure that, by its nature, frequently

crosses state lines. Moreover, amici have unique,

real-world insight into the interstate pipeline industry’s use of the eminent domain power granted under

the NGA and the practical consequences of applying

state law to determine just compensation.

INTRODUCTION AND

SUMMARY OF ARGUMENT

1. The federal eminent domain power is integral

to the NGA’s nationwide statutory framework. Prior

to Congress amending the NGA to delegate that power

to pipeline companies with certificated projects, interstate pipelines were hindered by a patchwork of state

laws related to eminent domain. In many instances,

companies could not build the infrastructure that

FERC had determined was necessary to the public interest, where state law failed to provide the necessary

authorizations or was overtly hostile to interstate natural gas pipelines. Congress resolved this issue in

1947 by enacting NGA section 7(h), which confers “the

right of eminent domain” on holders of a FERC certificate. 15 U.S.C. § 717f(h). In the decades that followed, the NGA’s federal eminent domain power became (and remains today) a vital tool for ensuring that

3

pipeline companies can build, operate, and maintain

infrastructure that is necessary to serve the public interest and help meet the Nation’s energy needs.

2. Despite the practical and legal importance of

the federal eminent domain power, INGAA members

have made a collective commitment to using this tool

only as a last resort. See INGAA, Commitments to

Landowners (Feb. 2019), https://perma.cc/2KFKKUD6. Pipeline companies understand the responsibility that comes with the delegation of that authority.

A recent survey of INGAA members reveals that over

a nine-year span, pipeline companies initiated NGA

condemnation proceedings for only 10% of tracts affected by certificated projects of ten miles or more and

litigated cases to the point of judicial valuation less

than 1% of the time. See Comments of the Interstate

Natural Gas Association of America, FERC Docket

No. PL 18-1-000, PL21-3-000 at 72 (Apr. 25, 2022) (Accession No. 20220425-5448) (“INGAA Comments”). 2

There are good reasons for that approach. Pipeline

companies are highly motivated to reach voluntary

agreements with landowners, to avoid the expense

and delays associated with lengthy condemnation proceedings and to foster a positive working relationship

with landowners with whom they will interact for

many years while the pipeline is in service. And price

is not the only term on which pipelines seek to reach

agreement with landowners. Pipeline companies

work diligently to accommodate nonmonetary concerns where feasible, such as adjusting rights-of-way

2 Available

by searching via accession number in FERC’s

eLibrary, https://elibrary.ferc.gov/eLibrary/search.

4

to avoid areas of particular importance on a tract, or

crafting construction schedules to avoid interfering

with agricultural seasons and other surface uses.

Although pipeline companies avoid condemnation

where possible, that does not mean that the federal

eminent domain authority is unimportant. Quite the

contrary. Condemnation actions may be the only viable path to develop a project—not only where parties

are unable to agree on price or other terms, but also

where no single tract owner has the clear right to negotiate with a developer. Parties may resort to court

action to resolve probate or estate issues, to quiet title,

to resolve disagreements among joint landowners, or

to address situations where landowners cannot be located. And because the NGA does not provide a separate statutory right of access to property to conduct

surveys, in some jurisdictions pipeline companies may

seek preliminary relief through a condemnation action to undertake environmental and cultural surveys, to gather information that is necessary to identify an appropriate route and to apply for required authorizations.

Landowners do not lack bargaining power in

these situations. Landowners and their counsel understand that pipeline projects are time sensitive, as

projects are designed and built to meet customer demand. Landowners further understand that such projects, like all linear infrastructure, depend on securing

easements for the entire project right-of-way. Such

knowledge encourages “holdouts,” who delay providing access to a property or resist coming to a valuation

agreement to drive up the price, hoping that a pipeline

will capitulate to avoid the delay and uncertainty of

5

litigation. Nor is it accurate to say that pipeline companies have an incentive to low-ball property owners

in negotiations; such tactics discourage agreements,

delay permitting, and hamper project development,

contrary to the developers’ interests. In practice, natural gas pipeline companies routinely pay more than

the assessed market value of a particular easement if

it means avoiding litigation, given the practical value

to pipelines of reaching early and voluntary agreements with landowners.

3. Allowing state law to define just compensation

in actions exercising the NGA’s federal eminent domain authority will create a patchwork of varying and

inconsistent legal standards and practical results.

Misaligned incentives will make pipeline development

more burdensome and expensive. Increased costs will

ultimately harm the hundreds of millions of Americans who depend on natural gas for heating, cooking,

cooling, and electric power generation.

To begin, applying the settled federal law definition of just compensation is most consistent with the

statutory text, history, and this Court’s precedent.

See Resp’t Br. 13-33; U.S. Cert. Br. 8-15. Such a rule

will also provide a single, uniform, and determinate

standard. A federal-law standard avoids the unfair

situation of neighboring landowners along a single

pipeline, who happen to be separated by a state border, receiving disparate compensation for similar

easements. A state-by-state approach will also be

more burdensome for pipeline companies whose projects are, by nature, part of a broader interstate system. A uniform federal standard is easier to administer, builds on a well-settled and well-understood body

6

of stable federal law, and ensures predictable administration of compensation awards under the Fifth

Amendment.

A state-law measure of just compensation, by contrast, would make eminent domain cases more uncertain, protracted, and expensive. As reflected in the

amicus briefs filed in this Court supporting Petitioner,

many states have a highly sophisticated landowner

bar. Counsel are adept at leveraging state law regimes that allow for the recovery of attorneys’ fees and

other litigation expenses, such as appraisal fees. In

the experience of amici and their members, attorneys

proactively target pipeline projects and aggressively

solicit landowner clients along the proposed right-ofway as soon as a potential project is made public.

Although the dispute in this case involves attorneys’ fees, a holding from this Court that state law

governs just compensation under the NGA’s federal

eminent domain authority would implicate a wide

range of other issues, many of which are unsettled.

Adopting Petitioners’ view of the law would declare an

open-season for landowners to raise and litigate various issues under state law. These include the measure of pre-judgment interest, the availability of

“stigma” damages and other theories of compensation

that differ from the fair-market-value standard under

federal law, and the standard for determining a parcel’s “highest and best use”—to name just a few examples. Those points would need to be litigated and resolved on a state-by-state basis across dozens or hundreds of cases, nationwide, every year. This proliferation of unsettled issues will inevitably protract

7

condemnation proceedings and decrease the likelihood of voluntary agreement or settlement.

A regime that allows landowners to shift their litigation costs to the pipeline will inevitably result in

opportunistic behavior and misaligned incentives. A

party who knows that win or lose, an adversary will

cover their litigation costs lacks an incentive to make

reasonable cost-benefit judgments about the value of

continuing to litigate—tending to protract proceedings and increase unproductive costs. In addition,

natural gas companies have encountered appraisers

who provide extremely low-cost initial appraisals that

dramatically overstate property value, creating unrealistic expectations in the property owner. When litigation inevitably ensues, appraisers may elevate the

price and scope of their services once it becomes apparent that the fees are likely to be shifted to the pipeline company in litigation. Those litigation costs are

created whether or not the landowner ultimately benefits from forcing a case into litigation. Petitioner’s

rule not only departs from statutory text, history, and

precedent, but will lead to these and other misaligned

incentives and inefficiencies, driving up the ultimate

cost of projects needed to serve the public interest.

ARGUMENT

I. The Eminent Domain Power Is an Essential

Part of the NGA’s Statutory Framework.

Without the federal eminent domain power,

FERC determinations that a particular interstate

natural gas pipeline is required by the public convenience and necessity could be rendered a dead letter,

with pipelines unable to proceed in many

8

jurisdictions. As the NGA’s history reveals and this

Court has explained, prior to conferral of the federal

eminent domain power on certificate holders, FERCapproved pipeline infrastructure projects were hindered or altogether thwarted in the many states that

did not provide state-law eminent domain power for

federally approved pipelines. See PennEast Pipeline

Co. v. New Jersey, 594 U.S. 482, 489 (2021) (citing S.

Rep. No. 429, 80th Cong., 1st Sess. 2-3 (1947)).

The legal and practical problems of a patchwork

state-law approach to eminent domain were pronounced. Some states overtly discriminated against

interstate projects (and project developers) by denying

foreign corporations the right to bring condemnation

actions. Other states refused to allow the use of eminent domain unless the operation of the pipeline in

question would benefit that state’s residents—a parochial requirement that was a poor fit for projects designed to move natural gas for long distances, across

multiple state lines. PennEast, 594 U.S. at 489. This

patchwork of state laws frustrated the federal scheme

and resulted in an inability to meet natural gas demand. See S. Rep. No. 429, 80th Cong., 1st Sess. 2-3;

Amendments to the Natural Gas Act: Hearings on H.R.

2185, H.R. 2235, H.R. 2292, H.R. 2569, and H.R. 2956

Before the H. Comm. on Interstate and Foreign Commerce, 80th Cong., 1st Sess. 543-545, 556-558 (1947);

Alexandra B. Klass & Danielle Meinhardt, Transporting Oil and Gas: U.S. Infrastructure Challenges, 100

IOWA L. REV. 947, 996-998 (2015). In short, the absence of federal eminent domain authority under the

NGA often rendered the “right to build” “illusory.”

PennEast, 594 U.S. at 489.

9

Ultimately, “Congress acted to remedy this defect” and “amended the NGA to authorize certificate

holders to exercise the federal eminent domain

power.” PennEast, 594 U.S. at 489 (emphasis omitted). In so doing, Congress provided “a mechanism for

certificate holders to secure property rights necessary

to build pipelines” to “ensure[] that certificates of public convenience and necessity could be given effect.”

Id. at 489-490; accord PennEast Pipeline Co., 164

FERC ¶ 61,098, P 29 (2018) (determination by FERC

that “[t]he power of eminent domain conferred by

NGA section 7(h) is a necessary part of the statutory

scheme to regulate the transportation and sale of natural gas in interstate commerce”). As this Court has

explained, “the federal eminent domain power” delegated via the NGA “is complete in itself,” whether

“condemnation suits [are brought] by the Federal Government [or] its delegatees.” PennEast, 594 U.S. at

508 (internal quotation marks and citation omitted).

Today, the Nation’s demand for natural gas is at

an all-time high.3 The federal eminent domain power

remains a vital part of the NGA’s statutory framework, and the effective and efficient resolution of condemnation cases is a necessary prerequisite for constructing and operating the infrastructure that is

needed to serve the public interest.

3 U.S. Energy Info. Admin., U.S. Natural Gas Consumption

Set a Monthly and Yearly Record in 2025 (Mar. 18, 2026),

https://perma.cc/BG34-GGGL.

10

II. Interstate Natural Gas Pipeline Companies

Are Responsible Stewards of the Federal

Eminent Domain Power and Exercise It Only

as a Last Resort.

1. Natural gas companies recognize the considerable responsibility that comes with Congress’s delegation of federal eminent domain authority in the NGA.

As a group, they have committed to exercising it “only

* * * as a means of last resort,” and they “begin every

easement negotiation with the expectation that a mutual agreement can be reached and eminent domain

rights will not need to be exercised.” INGAA, Commitments

to

Landowners

(Feb.

2019),

https://perma.cc/2KFK-KUD6.

This commitment is borne out by history and

practice. Easements for interstate natural gas pipelines are primarily obtained through voluntary agreements with landowners, without resort to litigation—

and this is true even for large “greenfield” projects

that may require acquiring many hundreds or even

thousands of easements across a lengthy new pipeline

route. See, e.g., Nexus Gas Transmission, LLC v. City

of Green, 757 Fed. Appx. 489, 491 (6th Cir. 2018) (noting that pipeline company had “negotiated voluntary

easements on 97% of the 2,070 tracts of land that lay

in the path of the pipeline”); USG Pipeline Co. v. 1.74

Acres, 1 F. Supp. 2d 816, 824 (E.D. Tenn. 1998) (noting that pipeline company “desired to acquire easements from landowners by negotiations and settlement rather than eminent domain whenever possible”).

In 2021, INGAA conducted a survey of its members regarding their use of eminent domain. The

11

survey involved 123 pipeline projects of over ten miles

in length that were certificated by FERC and placed

into service within a nine-year period (September

2011 through September 2020). These projects required easements across 25,268 tracts of land. The

survey found that condemnation proceedings were initiated for approximately 10% of the tracts, and less

than 1% required litigation through the point of full

judicial valuation. See INGAA Comments at 72. Over

71% of the time, INGAA members were able to execute agreements with landowners for an easement

prior to sending a final offer letter. Ibid. That trend

remains true today. Most of the time, natural gas

companies are able to come to an agreement with

landowners regarding a needed easement well in advance of the initiation of condemnation proceedings.

2. Natural gas companies have strong incentives

to develop and maintain positive working relationships with affected landowners. Years ago, INGAA

adopted, and its members continue to abide by, “Commitments to Landowners” to guide interactions with

landowners and set a framework for positive, mutually respectful relationships. See INGAA, Commitments to Landowners, supra. These commitments require negotiating in good faith with the goal of reaching a mutually agreeable easement. Ibid.

Pipeline companies believe that coming to a mutually acceptable agreement with a landowner is a

better, faster outcome than resorting to litigation.

Most often, the property interest needed to build a

pipeline is an underground easement allowing installation and long-term or indefinite presence of a pipeline, which means that the pipeline company’s

12

interest in the land continues alongside the landowner’s fee without appreciable conflict. Because natural gas pipelines have lifespans of many decades,

during which the asset requires periodic inspection

and maintenance, pipeline companies know up front

that they will need to engage productively with the

landowner going forward. It is in the company’s best

interest to come to an amicable result and foster a constructive and respectful working relationship.

FERC policies for reviewing and approving pipeline projects encourage negotiation with landowners.

A proposed project’s need for significant condemnation can weigh in FERC’s balancing of the public interest, in deciding whether to approve a pipeline company’s application for proposed new pipeline facilities.

See Certification of New Interstate Nat. Gas Pipeline

Facilities, 88 FERC ¶ 61,227, pp. 61,749-61,750

(1999). Accordingly, pipeline companies are incentivized to reach agreements with landowners along the

right-of-way even prior to certification (i.e., prior to

the point at which the pipeline would have eminent

domain authority, see 15 U.S.C. § 717f(h)) to increase

their chances of project approval.

Only once FERC approves a project does the pipeline company obtain legal authority to initiate condemnation proceedings. See 15 U.S.C. § 717f(h). Critically, even at that stage, the company remains highly

motivated to reach agreement with landowners to

avoid the cost and delay of protracted litigation. Because companies may need to purchase long-lead-time

items (e.g., steel, pipeline, equipment) before all necessary permits are obtained, postponing construction

for easement litigation increases the carrying cost of

13

those resources. Pipeline projects face strict deadlines

to meet time-sensitive customer needs and contractual commitments, and FERC regularly imposes

deadlines for completing construction as a condition of

approving new projects. As FERC has explained,

“condemning private property generally is not in the

pipeline’s best interest. The condemnation process

can be a prolonged and expensive process that could

delay construction of the pipeline and add significant

costs to the project.” Mountain Valley Pipeline, LLC,

163 FERC ¶ 61,197, P 70 (2018) (footnote omitted); see

also Mountain Valley Pipeline, LLC v. 6.56 Acres of

Land, 915 F.3d 197, 211 (4th Cir. 2019) (noting that

eminent domain process “could take more than three

years to complete – bringing it outside FERC’s in-service deadline [for the certificated pipeline]”).

For example, the Sabal Trail project, discussed by

some of Petitioners’ amici, was built and entered service in 2017. But the last condemnation actions in

Florida (where, under currently applicable precedent,

landowners are entitled to recover attorneys’ fees in

addition to compensation for the easement) were only

finally resolved about a decade later, in 2026. See,

e.g., Sabal Trail Transmission, LLC v. +/- 1.401 Acres

of Land, No. 16-cv-278, 2026 WL 964386, at *1 (M.D.

Fla. Mar. 27, 2026). Strikingly, the vast majority of

that decade-long litigation time involved disputes

over the landowner’s attempt to recover attorneys’

fees, not time spent litigating valuation of the easement itself.

Although condemnation cases can be vigorously

litigated, it is important to put the impacts on landowners into context. The easements obtained are

14

typically for a fully underground pipeline, accompanied by temporary surface use for installation and

maintenance. A pipeline is installed several feet or

more below ground, the trench is backfilled, and the

surface is restored as close as feasible to preconstruction conditions. Certain limitations on surface uses

may exist for safety and operational reasons. But the

practical reality is that many landowners and third

parties will not even be aware of the presence of an

interstate gas pipeline after it has been installed and

the surface remediated, apart from periodic stakes

marking the presence of an underground pipeline.

Moreover, empirical studies show that, on average,

the presence of an underground interstate natural gas

pipeline does not negatively affect property values.

See INGAA Foundation, Inc., Report No. 2016.01,

Pipeline Impact to Property Value and Property Insurability (2016), https://perma.cc/RJQ5-TTXH (concluding, based on quantitative analysis of data from a diverse range of properties nationwide, that the presence of an underground, FERC-regulated natural gas

pipeline does not affect the value of a home or its insurability).

3. Petitioners and their amici imply that condemnation actions are disproportionately filed against

small parcel individual landowners, who must then

face large corporations in court. See, e.g., Florida

Property Owners Amicus Br. 3-4. But this narrative

is incomplete at best. Condemnation actions can involve a range of landowners, including property held

by large corporations or even states. Nor is the use of

eminent domain power limited to disagreements regarding the value of a property interest. Litigation

15

may be necessary for numerous reasons, such as to

quiet title of a tract; to resolve probate or estate issues; where there is a lack of unanimity among joint

owners; or where landowners cannot be located or fail

to respond. See INGAA Comments at 72.

Moreover, in the context of large infrastructure

projects like pipelines, it is not accurate to suggest

that landowners lack bargaining power. Contra Owners’ Counsel Amicus Br. 5-6. To the contrary, the

“holdout problem” is well-known in economic literature.4 An interstate pipeline project—which can require the up-front investment of tens or hundreds of

millions of dollars before a shovel hits the ground—

cannot be built and enter service (and earn revenue)

until each and every easement is obtained along the

right-of-way. Accordingly, landowners and their

counsel have an incentive to resist settlement and delay pipeline access to the property, hoping that the

cost to the pipeline—and thus the pipeline’s settlement window—will escalate as the project moves

through the development process. See Richard A. Posner, Economic Analysis of Law § 3.7 (6th ed. 2003)

(noting that once pipeline development begins, the

cost of rerouting becomes very high, tempting landowners in the pipeline path to hold out “for a very high

price”).

Landowners and their counsel are also keenly

aware that pipeline projects are time-sensitive. Such

projects are authorized only after a demonstrated

4 See,

e.g., Thomas J. Miceli & C.F. Sirmans, The Holdout

Problem, Urban Sprawl, and Eminent Domain, 16 J. OF HOUS.

ECON. 309 (2007).

16

showing of need for gas transportation capacity. In

many cases, local utilities have signed long-term contracts that require the pipeline to be operational by a

certain date to serve end-use customers. Additionally,

FERC certificates authorizing the pipeline project

routinely include a deadline by which construction

must be completed, as a condition of the underlying

authorization. See 18 C.F.R. § 157.20(b).

Landowners and their counsel understand that

delaying the pipeline’s physical access to property—

even for preliminary steps such as the environmental

or cultural surveys necessary to apply for certain permits—or delaying agreement to an easement can delay the project as a whole, with disproportionate cost

imposed on the project developer. See, e.g., E. Tenn.

Nat. Gas Co. v. Sage, 361 F.3d 808, 829 (4th Cir. 2004)

(noting that “any single parcel has the potential of

holding up the entire project” (citation omitted));

Guardian Pipeline, L.L.C. v. 950.80 Acres of Land, 210

F. Supp. 2d 976, 978-979 (N.D. Ill. 2002) (noting that

“any delays or an inability to sequence construction

will occasion great additional expense to [the pipeline]”); Fla. Se. Connection, LLC v. 0.821 Acres of

Land, More or Less, 223 F. Supp. 3d 1227, 1231 (M.D.

Fla. 2016) (“A delay in obtaining access to the [e]asements would delay the entire [p]roject and cause [the

pipeline company] to significantly risk failing to meet

its * * * in-service deadline.”).

With delay as the “coin of the realm” by those opposed to new infrastructure, Appalachian Voices v.

FERC, 139 F.4th 903, 917 (D.C. Cir. 2025) (Henderson, J., concurring), landowners can obstruct the overall project or even force its cancellation by dragging

17

the pipeline into litigation.5 This reality gives landowners significant leverage. See, e.g., LandQuire,

Pipeline Easements—Read, Negotiate, and Get Value

Despite

Everything

(Jan.

20,

2026),

https://perma.cc/L86E-DZA3 (website offering advisory services, arguing that landowners with property

subject to eminent domain for a pipeline should “use

time to your advantage,” noting that pipeline “operators overwhelmingly prefer to negotiate voluntary

agreements. Why? Expropriation proceedings drag on

for 18-36 months. They cost $50,000 to $200,000 in legal fees. They also generate negative publicity. Your

bargaining power is real * * * .”).

4. In the experience of amici’s members and their

counsel, pipeline companies do not have an incentive

to provide landowners with inadequate initial offers.

In practice, it is better, cheaper, and more certain for

the pipeline to reach voluntary agreement with landowners than to spend years litigating. Thus, pipeline

companies have an incentive to offer landowners attractive values during negotiations (with agreed-upon

amounts often far exceeding appraised figures), in

hopes of reaching a consensual agreement. See Gilad

Edelman, Pipeline Companies Paying More to Cross

Private Land, Tex. Trib. (June 18, 2014),

https://perma.cc/H4HY-6A8B (observing trend of

“landowners increasingly aware of the potential for

high payouts” when pipeline eminent domain cases

are litigated under state law, “leading to a cycle of escalating costs,” and quoting landowner counsel that

5 See, e.g., Domina Law Grp., Nebraska Landowner Litigation

Prompts Biden Administration to End Keystone XL Pipeline (Jan.

19, 2021), https://bit.ly/4cPKBhb.

18

out-of-court “negotiations * * * are tracking very close

to those amounts [recovered at trial]”); cf. National

Ass’n of Realtors Amicus Br. 19 (alleging lowball offers). For example, USG Pipeline Co. described one

pipeline’s “efforts in reaching a starting point for offers.” A pipeline employee testified that “they initially

* * * obtained easements from six landowners at

$1,500 an acre. Subsequently, they negotiated a

higher amount with a landowner, $2,300–$2,400 per

acre, and went back to the first six landowners and

paid them at that same rate.” 1 F. Supp. 2d at 822.

In other words, even after securing a mutually agreeable initial rate, the pipeline company unilaterally

raised the rate for several landowners to match the

higher rate that another landowner later received.

5. Although pipeline companies seek to avoid condemnation, in some instances that step is unavoidable. For instance, in many jurisdictions, pipeline companies must invoke the federal eminent domain power

and seek preliminary judicial relief to obtain even initial physical access to property for conducting surveys. The NGA does not contain a separate statutory

provision giving a developer access to property along

the right-of-way to perform environmental, historic,

and other surveys. This preliminary access is necessary to gather the kind of site-specific information

that allows a project developer to reduce impacts to

protected resources, and is also typically needed even

to apply for required permits and other authorizations.

Survey access to landowner properties is critically

important early in the process to help project developers identify potentially sensitive areas to mitigate or

19

avoid. Developers will work to identify property features that may have particular importance or value to

a landowner, such as a grazing area, wetland, or road,

that can be accommodated in the project development

process. Particularly in early-stage development, obtaining property access allows pipelines to work with

landowners to accommodate those interests, such as

by shifting the proposed pipeline right-of-way where

feasible. See, e.g., Initial Comments of Enbridge Gas

Pipelines, FERC Docket No. PL 18-1-000 at 64-65

(May 26, 2021) (Accession No. 20210526-5225) (large

interstate gas pipeline developer noting that it “has

routinely employed re-routes to avoid the use of eminent domain [and] address landowner concerns”);

Midwestern Gas Transmission Co., 116 FERC

¶ 61,182, P 48 (2006) (FERC order noting that “[pipeline company] has an incentive to negotiate easements agreements to avoid condemnation litigation,

and * * * such agreements are flexible enough to shift

the route alignment slightly to accommodate individual landowner needs on their property usually without further Commission approval”).

Contrary to the suggestion by petitioners and

their amici, when pipelines obtain preliminary access

via an eminent domain proceeding, that access is often

conditioned on the pipeline first paying multiples of

the appraised value into the court’s registry in cash or

a bond. In many instances, the landowner can withdraw those funds during the pendency of case. See,

e.g., Mountain Valley Pipeline, 915 F.3d at 209 (“To

ensure that the landowners would be compensated

fully, the district courts required [the pipeline company] to post deposits, which the landowners could

20

draw upon while the proceedings continued.”); contra

Owners’ Counsel Amicus Br. 5 (suggesting owners do

not have access to funds until the case is over or the

pipeline is already built).

III. Applying State Law to Measure Just

Compensation in Federal Eminent Domain

Actions Would Increase the Length and

Cost of Condemnation Cases and Create

Misaligned Incentives.

This Court should hold that federal law defines

just compensation in federal eminent domain actions

under the NGA. As Respondent and the United States

persuasively show, such a result is most consistent

with statutory text, history and precedent. Resp’t Br.

13-33; U.S. Cert. Br. 10-18. A contrary ruling would

increase the length, complexity, and cost of eminent

domain actions by imposing a patchwork of varying

and inconsistent state laws on compensation. Landowners in some states are entitled to recover attorneys’ fees and other litigation costs from the pipeline,

although such amounts are not recoverable under federal law. See United States v. Bodcaw Co., 440 U.S.

202, 203 (1979) (per curiam). States also have varying

approaches to other issues that bear on the measure

of just compensation: how the parcel subject to the

taking is defined, whether a landowner can claim consequential, indirect, or other damages beyond fair

market value of the property taken, and what the rate

of prejudgment interest would be, to name just a few.

Such a regime would also create practical difficulties,

misaligned incentives, and increase the overall cost of

condemnation cases, to the ultimate detriment of

American energy consumers.

21

1. Applying state law to govern the measure of

just compensation would create an inefficient and potentially inconsistent patchwork of approaches governing the exercise of what should be a unified federal

eminent domain power. That patchwork will not only

increase the time and cost of acquiring easements to

build projects required to serve the public interest, but

will also undercut the interest of uniformity and fairness in treatment of landowners. FERC-jurisdictional

pipelines are, by definition, part of a larger interstate

network that crisscrosses state lines. Under petitioners’ approach, however, adjacent landowners affected

by the same pipeline but who are separated only by a

state line may receive dramatically different compensation for similar easements. For example, Florida

law assures a property owner “full compensation,”

Fla. Const. art. X, § 6, defined in that state to include

attorneys’ fees. See Joseph B. Doerr Tr. v. Cent. Fla.

Expressway Auth., 177 So. 3d 1209, 1215 (Fla. 2015)

(“full compensation under the Florida Constitution includes the right to a reasonable attorney’s fee for the

property owner”); Fla. Stat. § 73.092. Conversely, a

neighbor across the border in Georgia is entitled to

“just and adequate compensation,” Ga. Const. art. I,

§ 3, ¶ I, which under state law generally does not include attorney’s fees. See DeKalb Cnty. v. Trs., Decatur Lodge No. 1602, B.P.O. Elks, 251 S.E.2d 243, 244

(Ga. 1978); see also Ga. Code § 22-1-12 (providing for

attorney’s fees in eminent domain proceedings only

when it is adjudged that the condemnor cannot acquire the property by condemnation or the condemnor

abandons the proceeding).

22

Moreover, an approach under which a pipeline

company needs to conform its eminent domain proceedings and cost awards to different state laws across

a single project imposes additional burdens and costs

for developing needed infrastructure. Pipelines will

bear the additional cost of tailoring different strategies for acquiring easements on a jurisdiction-by-jurisdiction basis, both during initial negotiations

(which occur in the shadow of governing law), and via

litigation where necessary in some cases. By contrast,

a uniform federal approach to defining just compensation would offer efficiencies from the uniform application of the predictable, well-settled principles under

the Fifth Amendment that govern when the United

States is the condemnor.

2. Holding that state law governs the measure of

just compensation in NGA condemnation actions

would implicate a wide range of unsettled issues, all

of which would need to be litigated and resolved on a

state-by-state basis across dozens or hundreds of

cases nationwide every year. Such a framework

would dramatically increase the complexity, length,

and expense of condemnation actions. Greater uncertainty in the background rules of compensation would,

in turn, make voluntary agreements and settlements

less likely, as landowners leverage uncertainty to demand higher payouts, or choose to roll the dice with

litigation.

Petitioners and their amici “lean in” to this concern, emphasizing the number and diversity of statelaw approaches to measuring just compensation. See,

e.g., Landowner Groups Amicus Br. 15-16; Owners

Council Amicus 17-18. But this diversity is a bug, not

23

a positive feature, of their case. A state-law just compensation regime would create additional uncertainty

and vastly expand the number of issues that would

need to be litigated and resolved on a case-by-case basis.

States may provide entitlement not only to attorneys’ fees but also other costs of litigation, such as expert appraisal fees. In some jurisdictions, landowners

have aggressively litigated for so-called “severance” or

“stigma” damages under state law—where landowners seek not only the fair-market value of the easement taken as the Fifth Amendment provides, see Almota Farmers Elevator & Warehouse Co. v. United

States, 409 U.S. 470, 474 (1973), but also damages allegedly associated with prospective diminution in the

use or value of the property, harm to a business operating from that property, or even harms to a non-existent business that an owner one day hopes to develop. See Florida Property Owners Amicus Br. 1415. Simply enumerating these theories of compensation underscores the ways in which adopting Petitioners’ proposed rule would increase the number and

complexity of questions for litigation in condemnation

cases.

Another common issue in pipeline eminent domain cases is how to define the “highest and best” use

of a property, and in turn how to delineate the boundaries of the parcel “subject to” the taking. For instance, if a pipeline takes an underground easement

crossing one corner of an agricultural field, but that

field is adjacent to a separate parcel containing a

farmhouse, is the parcel “subject” to the taking defined as just the agricultural field, or the field together

24

with the residential parcel? Landowners and the

pipeline may have sharply differing views about what

is (or could be) the “highest and best” use of property

with and without a pipeline. See Atl. Coast Pipeline,

LLC v. 0.07 Acre, More or Less, 396 F. Supp. 3d 628,

647 (W.D. Va. 2019) (“In condemnation, the larger

parcel is ‘the tract or tracts of land which are under

the beneficial control of a single individual or entity

and have the same, or an integrated, highest and best

use.’” (citation omitted)). In practice, how the parcel

subject to the taking is defined can significantly

change the amount of compensation; if a landowner

proves a 5% diminution in value due to taking of an

easement, the amount of compensation will scale with

the size of the defined “parcel.”

Unsurprisingly, states differ significantly in how

to undertake this inquiry, whereas federal law provides a single uniform approach. Adopting Petitioners’ position would present the added burdens and

complexity associated with a patchwork of state laws.

Moreover, it bears emphasis that federal law does not

always advantage the pipeline over the property

owner, in terms of calculating the value of an easement. Compare United States v. 8.929 Acres of Land,

36 F.4th 240, 260 (4th Cir. 2022) (providing that, under federal law, separate tracts can be considered as a

single parcel for eminent domain purposes if there is

a “possibility” of the tracts being put to a unitary use

in “the reasonably near future” such that it is “reasonably sufficient to affect market value” (citation omitted)), with Commonwealth Transp. Comm’r v. Glass,

613 S.E.2d 411, 417 (Va. 2005) (Virginia law, requiring “actual, permanent and present joint use of all the

25

parcels as of the date of take” to find unity of lands for

purposes of defining the parcel subject to the taking).

Thus, although Petitioners here argue vigorously for

state law to apply, in the experience of natural gas

companies, landowners not infrequently have argued

for a federal-law standard on larger-parcel and other

issues, where it provided the possibility of a higher

compensation award.

Other legal issues abound, all of which would be

litigated on a state-by-state basis, across dozens or

hundreds of eminent domain cases every year, inevitably generating inconsistent results if Petitioners

prevail in this Court. The proliferation of issues to be

litigated creates uncertainty and discourages prompt,

efficient, and voluntary settlement. By contrast, fidelity to statutory text, history, and precedent, and holding that federal law governs just compensation in federal eminent domain actions, would promote clarity,

increase efficiency, and avoid unnecessarily protracted litigation.

3. Applying state law to measure “just compensation” in NGA cases will also lead to misaligned incentives, causing practical difficulties and increasing

costs. As the amicus briefs in this case illustrate, numerous jurisdictions entitle landowners to recover attorneys’ fees and other litigation expenses from the

condemning authority. That rule can create incentives for landowners and their counsel to engage in

unproductive litigation without regard to whether

those efforts ultimately benefit landowners.

Many jurisdictions have an extremely sophisticated and experienced landowner bar, whose members aggressively solicit clients as soon as a proposed

26

project is announced. Lawyers gather landowner information from public records as soon as a potential

project is known, and bombard property owners with

solicitations for representation. See Prop. Rights &

Pipeline Ctr., Get a Lawyer, https://perma.cc/4656N5GF (last visited Sept. 16, 2026) (landowner nonprofit warning of “eminent domain lawyers flocking

like seagulls to get groups of landowners to sign with

them” and noting that, based on landowner experience, “many eminent domain lawyers were simply in

it to ‘negotiate,’ and get their share of the pie”). Some

landowner attorneys specifically target pipeline projects. See, e.g., Sever Walker Padgett, Southeast Supply Enhancement, https://perma.cc/4B6U-BW3V (last

visited Sept. 16, 2026) (landowner attorney with

pages dedicated to targeting specific interstate pipeline projects); Domina Law Grp., TransCanada Keystone XL Pipeline, https://bit.ly/3VfgjOI (last visited

Sept. 16, 2026) (touting termination of Keystone XL

Pipeline project in part due to landowner litigation).

While amici are not privy to the precise fee arrangements between landowner attorneys and their

clients, a system in which landowners do not cover any

of the costs of their lawyers creates incentives for unproductive litigation. Where—win or lose—a landowner knows that their adversary will cover their litigation costs, that landowner lacks incentive to make

informed cost-benefit judgments about the value of

continued litigation. The inevitable result is to protract proceedings, increasing the total cost and burden

of acquiring pipeline easements, even where doing so

does not ultimately benefit landowners. For instance,

in jurisdictions where state law allows appraisal costs

27

to be shifted to the pipeline company in litigation, an

appraiser may offer a low-cost initial appraisal that

reflects a highly inflated property value. An unrealistically high initial appraisal can make the landowner

less likely to settle, and the case more likely to proceed

to litigation. But when the case proceeds to litigation,

appraiser fees and costs (e.g., reports, testimony) tend

to skyrocket, without pushback from a landowner who

expects to shift those costs to the pipeline in connection with any ultimate award. That is true whether

or not the landowner actually recovers anything close

to the initial appraisal.

Other misaligned incentives exist as well. For example, in the experience of amici members and their

counsel, landowners often care significantly about

practical issues other than the bottom-line dollar

value paid for the easement. Landowners might place

a significant practical value on adjusting a pipeline

route to avoid certain sensitive areas or surface features to protect existing uses, or on scheduling construction to avoid interfering with planting or harvesting seasons. Natural gas companies and their

counsel work diligently to accommodate landowners

on such issues.

See, e.g., Initial Comments of

Enbridge Gas Pipelines, FERC Docket No. PL 18-1000 at 64-65 (May 26, 2021) (Accession No. 202105265225) (large pipeline developer noting that it “has routinely employed re-routes to avoid the use of eminent

domain [and] address landowner concerns”).

However, in the experience of many natural gas

companies, once a landowner is represented by counsel, such discussions are sometimes pretermitted in

favor of an exclusive focus on the bottom-line dollar

28

value of the easement. That pivot may reflect the reality that landowner counsel’s compensation is typically fixed as a percentage of dollars recovered, not

based on securing nonmonetary accommodations.

Given that the pipeline cannot communicate directly

with landowners once they are represented by counsel, discussions about nonmonetary accommodations

often stop entirely—to the apparent detriment of

landowners.

Applying federal law would replace this patchwork of approaches with the stable, well-understood

principles that govern just compensation under the

Fifth Amendment. See Almota Farmers, 409 U.S. at

474 (property owner entitled “to the fair market value

of his property at the time of the taking”); Bodcaw, 440

U.S. at 203 (just compensation does not extend to “indirect costs to the property owner caused by the taking of his land”). Adopting a clear, determinate federal-law standard would facilitate parties reaching

agreement without the need for litigation, and would

reduce and streamline case trajectories for those matters where litigation is unavoidable. In short, applying federal law would improve the overall efficiency of

federal eminent domain proceedings under the NGA,

and help avoid unproductive litigation and opportunistic behavior that can follow from misaligned incentives—all to the benefit of the hundreds of millions of

Americans who depend on the Natural Gas Act to foster “the orderly development of plentiful supplies of

* * * natural gas at reasonable prices.” NAACP v. Fed.

Power Comm’n, 425 U.S. 662, 669-670 (1976).

29

CONCLUSION

The judgment of the United States Court of Appeals for the Eighth Circuit should be affirmed.

Respectfully submitted.

JOAN DRESKIN

INTERSTATE NATURAL

GAS ASSOCIATION OF

AMERICA

25 Massachusetts Ave.,

NW, Suite 500N

Washington, DC 20001

Counsel for Interstate

Natural Gas Association of America

GRACE D. SODERBERG

AMERICAN PETROLEUM

INSTITUTE

200 Massachusetts

Ave., NW

Washington, DC 20001

Counsel for American

Petroleum Institute

SEPTEMBER 2026

JEREMY C. MARWELL

Counsel of Record

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500 West

Washington, DC 20037

(202) 639-6507

jmarwell@velaw.com

SAMANTHA GARZA

VINSON & ELKINS LLP

200 West 6th St.,

Suite 2500

Austin, TX 78701

Counsel for Amici Curiae