Richard Baatz, et al. v. Columbia Gas Transmission, LLC

The Natural Gas Act (“NGA”) provides an avenue for producers and transporters of natural gas to acquire the right to use public, natural gas resources secreted within private land. The Act authorizes the Federal Energy Regulatory Commission (“FERC”) to issue certificates as a prerequisite to such use. In the decision below, a Sixth Circuit panel held that FERC certificate holders are not required to gain permission to enter the subsurface the land of titled landowners, in this case the Medina Landowners. The Sixth Circuit found that Columbia Gas could use the certificated property, a gas storage formation, without first contracting, obtaining an easement from, or bringing court action against the Medina Landowners. The NGA, the Sixth Circuit reasoned, did not identify a property interest worth protecting under federal or Ohio law. In this case Columbia Gas had used the storage formation that included the Medina Landowners subsurface for nearly sixty years without the knowledge of or permission from the Medina Landowners. The question presented is: Whether the Natural Gas Act requires the holder of a Certificate of Public Convenience and Necessity to obtain by easement, contract, or eminent domain the permission to enter certificated land from the title holder, and additionally identifies a property interest protectable by the titled land owner under federal or state law.