SCOTUS Sends Pipeline Eminent Domain Case Back to the District Court

by: Michael Realbuto
1 May 2023

Mountain Valley Pipeline construction. Credit: Chesapeake Climate Action Network


Our blog (and law firm, for that matter) is no stranger to federal pipeline eminent domain cases. Here are some of our prior blog posts about the topic for your reading pleasure.

The most recent news comes from the United States Supreme Court in a matter that challenges the Federal Energy Regulatory Commission’s (“FERC”) authority to issue certificates to the Mountain Valley Pipeline (“MVP”), a private pipeline company, that delegates it the power to take private land using eminent domain. Entered by the High Court in April 2023, the Court’s summary Order states as follows:

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the District of Columbia Circuit for further consideration in light of Axon Enterprise, Inc. v. FTC, 598 U. S. ___ (2023).

The Court’s Order vacated the U.S. District Court’s earlier finding that it lacked jurisdiction to hear a case that challenged the FERC’s delegation of eminent domain authority to private entities. The lawsuit was initially brought by six Virginia landowners who were found to be in the crosshairs of the MVP project. On January 6, 2023, pursuant to Rule 21, the Court granted the petitioners’ emergency Motion to Hold the Petition for Writ of Certiorari in Abeyance pending the Court’s decision on an almost identical jurisdictional issue in the Axon case. On April 14, 2023, the Court released a unanimous 9-0 decision in Axon holding the district court retains § 1331 jurisdiction over structural separation-of powers challenges because that type of separation-of-powers injury cannot be remedied by the agency itself or the court of appeals. The Court’s April 2023 summary decision in the MVP matter was clearly guided by the holding in Axon and proves to be a victory for the landowners who will now have their day in Court. Notwithstanding the District Court’s ability to hear the MVP case, there are some cases on the books that the landowners must overcome. For example, in Penneast Pipeline Co. v. New Jersey, 141 S. Ct. 2244 (2021), the Supreme Court expressly held that the Federal Government can constitutionally confer on pipeline companies the authority to condemn necessary rights-of-way in which a State has an interest. While it’s going to be an uphill battle, we are tuned in to see how this fight shapes out.

One of the easiest ways for a property owner to protect their rights is to retain experienced counsel as early as possible. For over 50 years, McKirdy, Riskin, Olson & DellaPelle, P.C. has concentrated its practice in eminent domain law and real estate tax appeals. Our firm has earned a reputation for persistently defending its clients’ constitutionally-recognized property rights. Please feel free to contact us for a free consultation.