
Subscribe for updates
Recent Posts
- District Court Remands Lawsuit Involving Contaminated Water Supply Despite Federal Involvement in Cleanup
- Pennsylvania Commonwealth Court Holds that Regional Climate Program Rule is an Illegal Tax
- District Court Finds Mine Reclaimer Liable for Past CWA and SMCRA Violations
- District Court Upholds ESG Rule Based on Chevron, Rejecting Application of “Major Questions” Doctrine
- Massachusetts District Court Holds That Breathing in Polluted Air Without A Concrete Injury Traceable To The Defendant Does Not Confer Standing Under The Clean Air Act
Topics
- Citizens Suit
- Georgia
- Federal Insecticide, Fungicide, and Rodenticide Act
- FIFRA
- Major Questions Doctrine
- Lead Paint
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- Vapor Intrusion
- Solvents
- National Priorities List
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Potentially Responsible Parties
- Operator Liability
- Environmental Covenants
- Federal Circuit
- National Contingency Plan
- Divisibility
- Apportionment
- Strict Liability
- Water Pollution Control Act
- Public Utilities Commission
- Historic Resources
- Utilities
- Hydraulic Fracturing
- Water Use
- Ohio
- PFAS
- Alternative Dispute Resolution
- Arbitration
- Climate Change
- Auer Deference
- Commonwealth Court
- Fees
- West Virginia
- Forest Service
- TSCA
- Asbestos
- Martime
- Utah
- Tribal Lands
- Federal Tort Claims Act
- New Mexico
- Gold King Mine
- Delaware
- Delaware Department of Natural Resources and Environmental Control
- National Forest Management Act
- FERC
- United States Supreme Court
- Endangered Species Act
- Chevron Deference
- HSCA
- Alter Ego
- Corporate Veil
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- PCBs
- Property Damage
- Building Materials
- First Circuit
- Groundwater
- Natural Resource Damages
- Brownfields
- Innocent Party
- Brownfield
- Environmental Rights Amendment
- Pipeline Hazardous Materials Safety Administration
- PHMSA
- Effluents
- FOIA
- Sediment Sites
- EHB
- Missouri
- Pipelines
- Texas
- Injunction
- Coal Ash
- Spoliation
- Stormwater
- TMDL
- Safe Drinking Water Act
- Colorado
- Michigan
- Drinking Water
- North Carolina
- Bankruptcy
- Clean Streams Law
- Hearing Board
- Civil Penalties
- Arranger Liability
- Retroactive
- Sovereign Immunity
- Damages
- Stigma
- Property Value
- Tax assessment
- Fair Market Value
- Storage Tank
- Energy
- Fifth Circuit
- Indemnification
- Electric
- Arizona
- Ninth Circuit
- Attorney-Client
- OPRA
- Iowa
- Fourth Circuit
- Discovery Rule
- Eighth Circuit
- Taxes
- Administrative Appeals
- Preemption
- CAFA
- Freshwater Wetlands Protect Act
- Inspection
- Residential
- New York
- Pennsylvania Department of Environmental Protection
- Federal Energy Regulatory Commission
- Natural Gas Act
- HAPs
- Hazardous Air Pollutants
- Mercury
- D.C. Circuit
- Condemnation
- Takings
- Storage
- Natural Gas
- Fifth Amendment
- Flooding
- Takings Clause
- Spill Act
- Causation
- NEPA
- Interior
- Tenth Circuit
- Mineral Leasing Act
- California
- Act 13
- Zoning
- Duty to Defend
- Insurance Coverage
- Eminent Domain
- Landfill
- Private Right of Action
- Sixth Circuit
- Illinois
- Water
- Diligent Prosecution
- Subject Matter Jurisdiction
- Citizen Suit
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Montana
- Navigability
- Riverbed
- Equal-Footing Doctrine
- Indiana
- Seventh Circuit
- Breach of Contract
- Public Lands
- Green House Counsel
- Bona Fide Prospective Purchaser
- Enforcement
- Equity
- Laches
- Delay Notice
- EPA
- Consent Decree
- Boiler MACT
- Rulemaking
- CISWI
- Contribution
- Declaratory Relief
- Second Circuit
- Procedure
- Standing
- NPDES
- Medical Monitoring
- Dimock
- Case Update
- Legislation
- Certification
- Contamination
- Dukes
- Louisiana
- CLE
- Discovery
- Expert Witness
- Privilege
- Work Product
- Decisions of Note
- Cases to Watch
- CERCLA
- Cost Recovery
- Defense Costs
- Insurance
- Real Estate
- Remediation
- Response Action Contractors
- Consultant Liability
- Negligence
- Rapanos
- Army Corps
- Donovan
- Hog Barn
- Kentucky
- Nuisance
- Class Actions
- Odors
- Trespass
- Farming
- New Jersey
- Administrative Hearing
- ISRA
- Informal Agency Action
- Combustion
- Emissions
- Railroad
- RCRA
- Waste
- Air
- Cancer
- Speaking Engagements
- Toxic Torts
- Federal Procedure
- Removal
- Third Circuit
- Clean Air Act
- Permits
- Statute of Limitations
- Title V
- Cleanup
- Superfund
- Supreme Court
- Multi-District Litigation
- Statute of Repose
- Tolling
- Camp Lejeune
- Deeds
- Administrative Procedures Act
- Marcellus Shale
- Clean Water Act
- Mineral Rights
- Due Process
- Enforcement Action
- Wetlands
- Royalties
- Drilling
- Exploration
- Leases
- Oil and Gas
Blog editor
Blog Contributors
Last month in a 2-1 split, the Third Circuit held that state, not federal, law determined how much a landowner was entitled to as just compensation in condemnation proceedings brought by private entities under the Natural Gas Act of 1938. Tennessee Gas Pipeline Co., LLC v. Permanent Easement for 7.053 Acres, No. 17-3700 (3d Cir. July 23, 2019). The precedential decision will force natural gas companies to account for differences in state law in negotiations with landowners over what constitutes “just compensation” for a taking.
The underlying dispute stemmed from Tennessee Gas Pipeline Company, LLC’s (“Tennessee Gas”) attempt to obtain easements from a landowner, King Arthur Estates, LP (“King Arthur”), for the construction of natural gas pipelines in Pennsylvania. King Arthur agreed that Tennessee Gas was entitled to the easements under the Natural Gas Act, but the parties disagreed regarding the appropriate compensation for the condemnation.
During the subsequent condemnation proceedings, a legal question arose regarding whether state or federal law governed the determination of just compensation in condemnation actions under the Natural Gas Act. The question was not merely academic because Pennsylvania law, the state law at issue, allows private property owners in condemnation cases to recover certain types of consequential damages and professional fees in addition to the land value. In this case, King Arthur stood to recover an additional $1 million if Pennsylvania law applied.
The district court held on summary judgment that federal law governed the determination, relying on the Supreme Court’s decision in United States v. Miller, 317 U.S. 369 (1943), in which the Court determined that federal law set the standard for the compensation due an owner of land condemned by the United States. King Arthur then filed an interlocutory appeal solely on the question of whether state or federal law supplies the standard of measuring just compensation in commendation proceedings by private entities under the Natural Gas Act.
The Third Circuit, in a 2-1 panel, reversed the district court’s decision and held that state law controls.
First, the court distinguished Miller on the ground that it applied solely to condemnation proceedings brought by the federal government. The court reasoned that the “powerful federal interest at play when the federal government is the condemnor is considerably weakened when a private entity is the condemnor,” and therefore, Miller was inapplicable.
Second, the court determined that there was a “gap” in the Natural Gas Act as to what standard to apply for the measure of compensation. As a result, the court turned to the analytical framework set forth in United States v. Kimbell Foods, Inc., 412 U.S. 580 (1973) to determine whether to apply state or federal common law in filling a “gap” in an ambiguous or incomplete federal statute. The Kimbell Foods analysis presumes that state law controls unless there is an expression of legislative intent to the contrary or a showing that state law significantly conflicts with the federal interest present. In applying the Kimbell Foods analysis, the court upheld the presumption in favor of state law on the basis that a national uniform standard for “just compensation” under the Natural Gas Act was in its view unnecessary, particularly because property rights are usually a matter of state concern.