The Public Use Clause in an Age of U.S. Natural Gas Exports
72 Stanford Law Review Online (Apr. 2020)
9 Pages Posted: 11 May 2020
Date Written: April 15, 2020
In little more than a decade, the United States has gone from a nation with diminishing supplies of natural gas to one that is a net exporter. This new abundance is due to technological developments in hydraulic fracturing and directional drilling, allowing producers to access vast quantities of natural gas trapped in shale rock deep below the earth’s surface. During that time, the natural gas industry has been on a massive building spree to create the pipelines needed to bring this energy resource from production sites to domestic and international markets. This national build-out, in turn, has created a groundswell of opposition. Landowners who don’t want these pipelines running under their property have joined forces with environmental groups concerned about the climate impacts of long-lived fossil fuel infrastructure investments to challenge these projects in court on multiple legal grounds. One argument that project opponents have consistently raised in their lawsuits is that the Public Use Clause of the Fifth Amendment to the U.S. Constitution bars the taking of private property for these pipelines. The problem with this argument, however, is that energy pipelines, like water pipelines, railroads, and electric transmission lines, have for decades been held out as the most fundamental of public uses, leading to consistent losses in the courts.
This Essay explores how courts are beginning to grapple anew with the role of the Public Use Clause in an age of energy exports. In doing so, this Essay focuses specifically on the potential for greater scrutiny in federal court review of decisions by the Federal Energy Regulatory Commission (FERC) under section 7 of the Natural Gas Act. Recent case law from the D.C. Circuit involving FERC’s public use determinations as well as the agency’s practice of delaying judicial review of its decisions through so-called “tolling orders” shows increasing discomfort in the federal courts with FERC’s treatment of these projects. Such discomfort has the potential to lead to real changes in the law governing public use for natural gas pipelines. Indeed, the growing opposition to interstate natural gas pipelines may soon create a new jurisprudence surrounding eminent domain — one that continues to support the use of eminent domain for natural gas pipelines proposed for domestic use but may not support the use of eminent domain for pipelines designed to transport natural gas for export.
Keywords: natural gas, public use, Fifth Amendment, energy exports, FERC, Natural Gas Act, eminent domain, property rights climate change
JEL Classification: K32, Q35, K11, K23
Suggested Citation: Suggested Citation