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July 6, 2020

Anti-Pipeline Litigation Continues

The United States Court of Appeals for the District of Columbia ruled last week that the Federal Energy Regulatory Commission (FERC) may not issue authorizations to proceed with pipeline construction until all landowner challenges to eminent domain on right-of-way have been resolved by FERC through its re-hearing process.

FERC has long maintained a policy of granting notices to proceed with construction where challenges were being considered and before they were resolved. Additionally, FERC recently issued an order mandating that it act on landowner appeals within 30 days. Federal law requires that before a landowner can contest eminent domain in court, FERC must first hear and rule on the landowner’s appeal.

The new policy is likely to add further delays to construction approvals while all challenges are resolved.

Also last week: the Energy Equipment and Infrastructure Alliance (EEIA), which MSCI is a member of, filed comments with FERC in support of Atlantic Coast Pipeline’s request that the agency extend its deadline for completing the project, now October 2020, for two years, or until October 2022. The comments cite the need for the extension because of delays wrongly imposed by the now-overturned ruling by a Federal Court of Appeals that the project’s permits to cross the Appalachian Trail were invalid.