RDFS, LLC v. Federal Energy Regulatory Commission, et al.

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?