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Nor Is Condemnation a Trivial Affair By Soledad M. Valenciano
Soledad Valenciano is an attorney in San Antonio, where she practices eminent domain litigation. Her firm exclusively represents property owners. Valenciano is the president of the San Antonio Chapter of the FBA and is a frequent speaker on eminent domain issues. She co-authors the “Federal Court Update” published in the San Antonio Lawyer Magazine. ©2021 Soledad M. Valenciano. All rights reserved.
The hacking of Colonial Pipeline and the resulting images of gasoline hoarding, long lines at the gas pumps, and yellow flags symbolizing “No Gas” proved to be a stark reminder that, regardless of any push for a greener planet, Americans rely heavily on natural gas and petroleum products. According to the New York Times, Colonial Pipeline is one of the largest interstate pipelines in the United States, connecting Texas to New Jersey, traversing some 5,500 miles and carrying 3 million barrels of fuel per day.1 (See Figure 1.) It is an older pipeline, built in 1961 by several pipeline companies that joined together to meet the rapid growth in highway driving and long-distance air travel. According to the National Council of State Legislatures,3 as of 2009, two-thirds of the lower 48 states depended almost entirely on interstate pipeline systems for natural gas supplies. Figure 2 illustrates this “intricate network.”4 According to the U.S. Department of Transportation’s (USDOT’s) Bureau of Transportation Statistics, the United States maintains a staggering 2 million miles of pipelines transporting natural gas or crude oil.5 Seen by some as a safer alternative to physically transporting natural gas by truck or rail, and considered a step in the right direction in terms of decreasing U.S. dependency on foreign oil, interstate pipelines transporting natural gas or crude oil still prove to be persona non grata. Protests have successfully derailed some development of interstate pipelines in recent years.6 The Constitution Natural Gas Pipeline was rejected by the state of New York, Northeast Supply Enhancement Natural Gas was “buried in red tape,” and the Atlantic Coast Natural Gas Pipeline was canceled after several years of litigation.7 Some protests are due to fear of leaks. According to the Hill Country News, natural gas pipeline leaks involve volatile fuel, made up mostly of methane, and between January 2010 and November 2017, the nation’s natural gas transportation network leaked a total of 17.55 billion cubic feet of mostly methane gas.8 Other protests include concerns about crossing sacred tribal lands and other natural and cultural features.9 Protests opposing the construction of natural gas pipelines often begin at the regulatory phase when the
public first learns of the proposed project. Interstate pipelines are managed by the Federal Energy Regulatory Commission (FERC) and USDOT. FERC regulates pipelines, storage, natural gas transportation in interstate commerce, and liquefied natural gas facility construction.10 The Natural Gas Act of 1938 (NGA) conferred the authority on FERC’s predecessor agency (the Federal Power Commission) to review and grant certificates for the construction and operation of interstate natural gas pipelines and facilities. Prior to receipt of a “certificate of public convenience and necessity” and pursuant to section 7 of the NGA, gas pipelines typically undergo an extensive pre-filing and filing process with FERC that includes the review and approval of the siting of new lines. This process includes, for example, preparing environmental assessments under the National Environmental Policy Act (NEPA), reviewing route alternatives, and coordinating with the various federal agencies from whom permits may be required related to wetlands and endangered species considerations.11 It follows that when the applicant for the certificate actually possesses the certificate and begins to exercise the power of eminent domain to acquire easements, private property owners are less than happy. As an eminent domain attorney representing property
Figure 1. Colonial Pipeline Map2
July/August 2021 • THE FEDERAL LAWYER • 7
