Starting off the New Year with a ‘Bang!’: Virginia Landowners quietly file constitutional case against FERC

ROANOKE, Va. (January 3, 2020) — As the rest of the country rang in the new year, Landowners in Virginia who own property on the route of the Mountain Valley Pipeline were hard at work, quietly filing a constitutional case in the U.S. District Court for the District of Columbia.

The lawsuit was filed against the Federal Energy Regulatory Commission (FERC) and the Mountain Valley Pipeline (MVP).

The case centers around three constitutional principles involving delegations of Congressional power:

  1.  A broad delegation of power is unconstitutional
  2. Delegating delegated power is unconstitutional
  3. Delegating legislative power to a private entity is unconstitutional

“When it comes to eminent domain, FERC has far too much power and discretion,” said Gentry Locke lawyer Mia Yugo, attorney for landowners.

“The vesting clauses of Articles I, I, and III were designed to uphold the strict separation of powers between the three branches of government,” Yugo said. “Congress, which was entrusted with legislative power, is not permitted to delegate that power to the executive branch or to an unelected regulatory agency without constitutionally adequate limitations.”

If a delegation of power is overly broad, the judiciary has an obligation to reign in Congress’s actions, and the U.S. Supreme Court has recognized as much.

The Complaint is a facial constitutional challenge, which raises three Counts.

Count I is about an overly broad delegation of power by Congress to FERC. When it enacted the Natural Gas Act, Congress delegated to FERC the legislative power to decide who can exercise eminent domain without providing FERC with a test to use when making its decisions. Instead, Congress told FERC to make its own test. In doing so, Congress violated the non-delegation doctrine.

Counts II and III both involve delegations of eminent domain power to a private entity. Count II is premised on the idea that the power went from Congress to FERC and then to the private entity. This violates the prohibition on the sub-delegation of powers.

Alternatively, Count III is premised on a direct delegation from Congress to the private entity. Because eminent domain power is legislative in nature, it cannot be delegated directly to a private entity. This violates the private non-delegation doctrine. The private non-delegation doctrine says that Congress cannot delegate legislative power to a private entity. (“When it comes to private entities, however, there is not even a fig leaf of constitutional justification. Private entities are not vested with ‘legislative Powers.’ Art. I, §1.”) (Alito, J., concurring).

As a result, Plaintiffs are seeking a declaratory judgment declaring that FERC has no authority to issue certificates and that all such certificates already issued are void.

While this theory has been dormant for 84 years, the United States Supreme Court appears ready to revive it.

Lawyers and Law firms involved:
Gentry Locke – Partner Thomas J. Bondurant, Jr. and Mia Yugo
Hafemann, Magee & Thomas, LLC – John R. Thomas, Jr. (D.C. Counsel)

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