
Subscribe for updates
Recent Posts
- Third Circuit Remands 1,4 Dioxane Case to State Court Rejecting the Use of the Federal-Officer Removal Statute
- D.C. Circuit Affirms FERC’s Approval of Pipeline Construction Extension
- Supreme Court Provides Framework for Venue for Clean Air Act Challenges
- Supreme Court Endorses Use of “Commonsense Economic Principles” to Establish Standing for Businesses Downstream of Regulated Parties
- Supreme Court Issues “Course Correction” to NEPA Jurisprudence, Emphasizing Statutory Text and Common Sense
Topics
- State Implementation Plans
- Venue
- NJDEP
- Connecticut
- Pollutants
- Federal Land Policy and Management Act
- Loper Bright
- Council on Environmental Quality
- Agency Action
- Public Trust Doctrine
- New Jersey Civil Rights Act
- Environmental Justice
- Disparate Impact
- Title VI
- Massachusetts
- Evidence
- Internal Investigation
- Citizens Suit
- Georgia
- FIFRA
- Federal Insecticide, Fungicide, and Rodenticide Act
- 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
- National Priorities List
- Vapor Intrusion
- Solvents
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Operator Liability
- Potentially Responsible Parties
- Environmental Covenants
- Federal Circuit
- Divisibility
- National Contingency Plan
- Apportionment
- Strict Liability
- Water Pollution Control Act
- Historic Resources
- Utilities
- Public Utilities Commission
- Hydraulic Fracturing
- Water Use
- PFAS
- Ohio
- Alternative Dispute Resolution
- Arbitration
- Climate Change
- Auer Deference
- Fees
- Commonwealth Court
- West Virginia
- Forest Service
- TSCA
- Asbestos
- Martime
- Gold King Mine
- Utah
- Federal Tort Claims Act
- New Mexico
- Tribal Lands
- Delaware
- Delaware Department of Natural Resources and Environmental Control
- FERC
- National Forest Management Act
- United States Supreme Court
- Chevron Deference
- Endangered Species Act
- HSCA
- Corporate Veil
- Alter Ego
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- Building Materials
- First Circuit
- Property Damage
- PCBs
- Groundwater
- Natural Resource Damages
- Brownfield
- Innocent Party
- Brownfields
- Environmental Rights Amendment
- Pipeline Hazardous Materials Safety Administration
- PHMSA
- FOIA
- Effluents
- Sediment Sites
- EHB
- Texas
- Missouri
- Pipelines
- Injunction
- Coal Ash
- Spoliation
- Stormwater
- TMDL
- Safe Drinking Water Act
- Colorado
- Drinking Water
- Michigan
- North Carolina
- Bankruptcy
- Clean Streams Law
- Civil Penalties
- Hearing Board
- Arranger Liability
- Sovereign Immunity
- Retroactive
- Tax assessment
- Damages
- Property Value
- Stigma
- Fair Market Value
- Storage Tank
- Indemnification
- Energy
- Fifth Circuit
- Electric
- Arizona
- Ninth Circuit
- Attorney-Client
- OPRA
- Iowa
- Discovery Rule
- Fourth Circuit
- Eighth Circuit
- Administrative Appeals
- Taxes
- Preemption
- CAFA
- Freshwater Wetlands Protect Act
- Residential
- Inspection
- New York
- Pennsylvania Department of Environmental Protection
- Natural Gas Act
- Federal Energy Regulatory Commission
- D.C. Circuit
- Mercury
- Hazardous Air Pollutants
- HAPs
- Condemnation
- Takings
- Storage
- Natural Gas
- Takings Clause
- Flooding
- Fifth Amendment
- Causation
- Spill Act
- NEPA
- Mineral Leasing Act
- Tenth Circuit
- Interior
- California
- Zoning
- Act 13
- Insurance Coverage
- Duty to Defend
- Landfill
- Eminent Domain
- Sixth Circuit
- Private Right of Action
- Illinois
- Water
- Subject Matter Jurisdiction
- Citizen Suit
- Diligent Prosecution
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Equal-Footing Doctrine
- Riverbed
- Navigability
- Montana
- Seventh Circuit
- Indiana
- Breach of Contract
- Public Lands
- Green House Counsel
- Bona Fide Prospective Purchaser
- Laches
- Boiler MACT
- Delay Notice
- Rulemaking
- Equity
- CISWI
- Consent Decree
- Enforcement
- EPA
- Declaratory Relief
- Second Circuit
- Contribution
- Procedure
- Standing
- NPDES
- Medical Monitoring
- Dimock
- Case Update
- Legislation
- Certification
- Contamination
- Louisiana
- Dukes
- CLE
- Discovery
- Work Product
- Cases to Watch
- Privilege
- Decisions of Note
- Expert Witness
- CERCLA
- Insurance
- Defense Costs
- Cost Recovery
- Real Estate
- Response Action Contractors
- Consultant Liability
- Negligence
- Remediation
- Rapanos
- Army Corps
- Donovan
- Class Actions
- Hog Barn
- Kentucky
- Trespass
- Farming
- Odors
- Nuisance
- Administrative Hearing
- New Jersey
- ISRA
- Informal Agency Action
- Railroad
- Cancer
- Emissions
- Waste
- Air
- Combustion
- RCRA
- Speaking Engagements
- Removal
- Federal Procedure
- Third Circuit
- Toxic Torts
- Clean Air Act
- Statute of Limitations
- Permits
- Title V
- Superfund
- Cleanup
- Supreme Court
- Multi-District Litigation
- Tolling
- Camp Lejeune
- Statute of Repose
- Due Process
- Deeds
- Clean Water Act
- Wetlands
- Mineral Rights
- Administrative Procedures Act
- Enforcement Action
- Marcellus Shale
- Leases
- Exploration
- Royalties
- Drilling
- 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.