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Landowners consider options after temporary setback in Mountain Valley Pipeline challenge

On July 25, 2018 the Fourth Circuit Court of Appeals issued its decision in Berkley, et al. v. Mountain Valley Pipeline, LLC, et al, and found that landowners cannot challenge the constitutionality of the Natural Gas Act in federal district court. Instead, landowners must present such constitutional claims first to the Federal Energy Regulatory Commission (FERC), the same body that landowners challenge cannot lawfully act under the Natural Gas Act. FERC consistently states that it does not and cannot decide such issues. Once FERC issues its decision, including findings that it cannot even consider challenges to the Natural Gas Act, landowners may appeal such a decision to a federal court of appeals.  Experience has shown, however, that while FERC makes its decisions, pipelines are built and put into operation before landowners ever get to present their case before a federal court of appeals.

Gentry Locke partner Justin M. Lugar has issued a statement on behalf of the landowners. “While we are disappointed with the decision of the Fourth Circuit today and the continued lack of meaningful access to justice, we look forward to the next steps in the long process of change.  We are currently evaluating the Court’s opinion and will decide in the coming days which path to take forward in this case. We note as well that this is but one of many cases currently working through the system — not only in our region, but across the country — and we are optimistic that there is much yet to be decided regarding the Mountain Valley Pipeline and the Atlantic Coast Pipeline, among others. Thanks to courageous landowners, such as the committed and resolute landowners in this case, important issues that have long been overlooked or ignored in the energy industry are finally being raised. It is only a matter of time before we start seeing results in courts across the country. A concerned and active citizenry is the most powerful voice for change. We will all continue to fight for property rights and a fair and just system.”