United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING MOTION TO STAY
[DKT. NO. 31], GRANTING MOTION TO STRIKE [DKT. NO. 28],
DENYING AS MOOT MOTION TO DISMISS [DKT. NO. 23-1], AND
GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT AND IMMEDIATE
ACCESS [DKT. NO. 5]
M. KEELEY UNITED STATES DISTRICT JUDGE
plaintiff, Mountain Valley Pipeline, LLC (“MVP”),
seeks to condemn certain temporary and permanent easements
necessary for the construction and operation of an interstate
natural-gas pipeline. To facilitate the expeditious
completion of its project, MVP moves the Court to grant
partial summary judgment regarding its right to condemn the
easements, and to enter a preliminary injunction allowing it
to access and possess the property prior to paying just
compensation (Dkt. No. 5).
carefully considered the record and the parties'
arguments regarding the pending motions, for the following
reasons, the Court DENIES the Motion for
Stay of Proceedings (Dkt. No. 31), GRANTS
MVP's Motion to Strike (Dkt. No. 28), DENIES AS
MOOT Defendants' Motion to Dismiss (Dkt. No.
23-1), and GRANTS MVP's Motion for
Partial Summary Judgment and Immediate Access to and
Possession of the Easements Condemned for Construction of the
MVP Project (Dkt. No. 5).
proceeding is governed by the Natural Gas Act
(“NGA” or “the Act”), which provides
private natural-gas companies the power to acquire property
by eminent domain. 15 U.S.C. § 717 et seq.
Under the Act, a “natural-gas company” is
“a person engaged in the transportation of natural gas
in interstate commerce, or the sale in interstate commerce of
such gas for resale.” Id. § 717a(6). Such
companies may build and operate new pipelines only after
obtaining a certificate of public convenience and necessity
(“Certificate”) from the Federal Energy
Regulatory Commission (“FERC” or “the
Commission”). As the Fourth Circuit has summarized:
The procedure for obtaining a certificate from FERC is set
forth in the NGA, and its implementing regulations. The
process begins with an application from the gas company that
includes, among other information, (1) a description of the
proposed pipeline project, (2) a statement of the facts
showing why the project is required, and (3) the estimated
beginning and completion date for the project. Notice of the
application is filed in the Federal Register, public comment
and protest is allowed, and FERC conducts a public hearing on
the application. As part of its evaluation, FERC must also
investigate the environmental consequences of the proposed
project and issue an environmental impact statement. At the
end of the process FERC issues a certificate if it finds that
the proposed project “is or will be required by the
present or future public convenience and necessity.” In
its order issuing a certificate, FERC specifies a date for
the completion of construction and the start of service. The
certificate may include any terms and conditions that FERC
deems “required by the public convenience and
E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 818
(4th Cir. 2004) (internal citation omitted).
FERC has issued a certificate, the NGA empowers the
certificate holder to exercise ‘the right of eminent
domain' over any lands needed for the project.”
Id. (citing 15 U.S.C. § 717f(h)). The authority
by which natural-gas companies may exercise the right is set
forth fully in the Act:
When any holder of a certificate of public convenience and
necessity cannot acquire by contract, or is unable to agree
with the owner of property to the compensation to be paid
for, the necessary right-of-way to construct, operate, and
maintain a pipe line or pipe lines for the transportation of
natural gas, and the necessary land or other property, in
addition to right-of-way, for the location of compressor
stations, pressure apparatus, or other stations or equipment
necessary to the proper operation of such pipe line or pipe
lines, it may acquire the same by the exercise of the right
of eminent domain in the district court of the United States
for the district in which such property may be located, or in
the State courts. The practice and procedure in any action or
proceeding for that purpose in the district court of the
United States shall conform as nearly as may be with the
practice and procedure in similar action or proceeding in the
courts of the State where the property is situated:
Provided, That the United States district courts
shall only have jurisdiction of cases when the amount claimed
by the owner of the property to be condemned exceeds $3, 000.
15 U.S.C. § 717f(h). Notably, the “state procedure
requirement has been superseded” by the implementation
of Fed.R.Civ.P. 71.1, which provides the applicable procedure
in most condemnation cases. See Sage, 361 F.3d at
are, therefore, three essential prerequisites that must be
met prior to exercising the power of eminent domain under the
NGA. The natural-gas company must only establish that
“(a) It is a holder of a certificate of public
convenience and necessity; (b) It needs to acquire an
easement, right-of-way, land or other property necessary to
the operation of its pipeline system; and (c) It has been
unable to acquire the necessary property interest from the
owner.” Rover Pipeline LLC v. Rover Tract No(s)
WV-DO-SHB-011.510-ROW-T & WV-DO-SHB-013.000-ROW-T,
No. 1:17cv18, 2017 WL 5589163, at *2 (N.D.W.Va. Mar. 7,
in the Fourth Circuit is clear that, “once a district
court determines that a gas company has the substantive right
to condemn property under the NGA, the court may exercise
equitable power to grant the remedy of immediate possession
through the issuance of a preliminary injunction.”
Sage, 361 F.3d at 828. A preliminary injunction is
proper when the plaintiff can “ establish that he is
likely to succeed on the merits,  that he is likely to
suffer irreparable harm in the absence of preliminary relief,
 that the balance of equities tips in his favor, and 
that an injunction is in the public interest.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
October 13, 2017, FERC granted a Certificate to MVP
authorizing construction of a 303.5-mile-long,
42-inch-diameter natural-gas pipeline from Wetzel County,
West Virginia, to Pittsylvania County, Virginia (“MVP
Project” or “the Project”) (Dkt. No. 1-2 at
The Project also includes three compressor stations in West
Virginia and four interconnections along the pipeline's
route. Id. at 3-4. The Certificate is subject to
various environmental conditions, including those that must
be fulfilled before and during construction of MVP's
pipeline. Id. at app. C.
must obtain easements along the Project in order to construct
its pipeline, and under the appropriate circumstances the NGA
grants it the authority to do so by eminent domain. On
December 8, 2017, MVP sought to exercise that authority over
certain property located in the Northern District of West
Virginia, which it could not acquire by agreement, by filing
a complaint pursuant to the NGA and Fed.R.Civ.P. 71.1 (Dkt.
No. 1). As required by Rule 71.1(c)(2), it included
descriptions of the property, as well as the interests to be
taken (Dkt. Nos. 1 at 5-7; 1-1; 1-3). On December 13, 2017,
MVP filed the following motions: Motion for Partial Summary
Judgement and Immediate Access to Survey Parcel ID Nos.
02-4L-19, 02-4L-12 Owned by Arthur C. And Judy Roberts
(“Survey Motion”) (Dkt. No. 3); Motion for
Partial Summary Judgment and Immediate Access to and
Possession of the Easements Condemned for Construction of MVP
Project (“Possession Motion”) (Dkt. No. 5); and
Motion for Expedited Hearing on Motions for Partial Summary
Judgment and Immediate Access to and Possession of the
Easements Condemned (Dkt. No. 7).
a status conference on December 21, 2017, the Court set a
schedule for discovery and briefing on the Survey Motion and
Possession Motion (Dkt. No. 33). The next day, several
defendants filed a motion to stay proceedings on MVP's
motion for immediate possession, which remains pending (Dkt.
No. 31). On December 29, 2017, the Court denied the Survey
Motion as moot after being advised by the parties that the
motion was no longer in controversy (Dkt. No. 42). The Court
subsequently granted MVP's motion for an expedited
hearing, and amended the schedule to include a hearing on the
Possession Motion (Dkt. No. 43).
to Fed.R.Civ.P. 71.1(e)(2), the following defendants asserted
objections and defenses by way of an answer: Hilry Gordon,
Gerald Wayne Corder, Randall N. Corder, Bryan and Helen
Montague Van Nostrand, Charles F. Chong and Rebecca Ann
Eneix-Chong, Nancy Shewmake Bates, and William G. Lloyd (Dkt.
No. 23-1); Western Pocahontas Properties LP
(“Western Pocahontas”) (Dkt. No. 45); ICG
Eastern, LLC (“ICG Eastern”) (Dkt. No.
George Ernest Bright and William Townsend Bright (Dkt. No.
50); Dale Eastham, Travis Eastham, Brent Fairbanks, David
Fairbanks, Michael Fairbanks, Edward Charles Smith, Sr.,
Edward Charles Smith, II, Todd Edward Smith, and Jeremy
Collins (Dkt. No. 51); Adam L. Matheny and Glenn D. Matheny
(Dkt. No. 52); and Arthur C. Roberts and Judy D. Roberts
(Dkt. No. 53). On January 23, 2018, the Court conducted an
evidentiary hearing on MVP's Possession Motion (Dkt. No.
103). Thereafter, the parties filed post-hearing briefs
regarding MVP's Possession Motion (Dkt. Nos. 112; 113;
114). The pending motions are now ripe for disposition.
MOTION TO STAY
December 22, 2017, defendants Charles F. Chong and Rebecca
Ann Eneix-Chong (“the Chongs”) moved to stay
proceedings on MVP's motion for immediate possession
(Dkt. No. 31), contending that, because there is a pending
application for rehearing before FERC, this Court should
delay consideration of equitable relief for MVP.
to the Chongs, the regulatory process before FERC has
subjected them to “administrative purgatory.”
Id. at 2. At the evidentiary hearing on January 23,
2018, however, MVP and the Chongs advised that they had
reached an agreement in principle regarding just compensation
that would render moot the Chongs' motion to stay.
Because that agreement is not final, however, the Court has
considered the motion and DENIES it for the
FERC issues a Certificate, aggrieved parties may petition for
rehearing within 30 days. Unless FERC “acts upon the
application for rehearing within thirty days, ” the
application is deemed denied. Following further review by
FERC, parties may seek judicial review, which is exclusively
“in the court of appeals of the United States for any
circuit wherein the natural-gas company to which the order
relates is located or has its principal place of business, or
in the United States Court of Appeals for the District of
Columbia.” 15 U.S.C. § 717r(a). Aggrieved parties
are given “60 days after the order of [FERC] upon the
application of rehearing” to seek judicial review.
Id. § 717r(b).
Certificates are effective on the date that they are issued.
18 C.F.R. § 285.2007(c)(1) (2017). Filing an application
for rehearing or seeking judicial review does not
“operate as a stay of [FERC's] order” unless
otherwise ordered by FERC or the applicable court of appeals.
15 U.S.C. § 717r(c). Only FERC and the courts of appeals
have jurisdiction to stay the effect of a Certificate, and
pending applications for rehearing - or even granted
applications for rehearing - do not nullify the
Certificate's effect in an eminent domain proceeding
before the district court. See Sabal Trail Transmission,
LLC v. 7.72 Acres in Lee Cty., Ala., No. 3:16-cv-173,
2016 WL 8900100, at *4 (M.D. Ala. June 3, 2016) (collecting
cases); Steckman Ridge GP, LLC v. An Exclusive Nat. Gas
Storage Easement Beneath 11.078 Acres, More or Less, No.
08-168, 2008 WL 4346405, at *3-*6 (W.D. Pa. Sept. 19, 2008).
case, FERC issued MVP's Certificate on October 13, 2017.
On November 13, 2017, the Chongs and a number of other
interested parties timely moved for rehearing before FERC.
They argue that MVP's Project is not necessary under the
NGA, and that the FERC Certificate rests on a deficient final
environmental impact statement, in violation of the National
Environmental Policy Act (Dkt. No. 31-2 at 2, 6-7). FERC
responded with a “tolling order” on December 13,
2017, which states:
In order to afford additional time for consideration of the
matters raised or to be raised, rehearing of the
Commission's order is hereby granted for the limited
purpose of further consideration, and timely-filed rehearing
requests will not be deemed denied by operation of law.
(Dkt. No. 31-1). According to FERC, such tolling orders do
not constitute an “act upon” motions for
rehearing, and associated Certificates are not final agency
actions subject to judicial review (Dkt. No. 31-3 at 5).
Neither FERC nor a court of appeals has enjoined enforcement
of MVP's Certificate.
acknowledging that this Court does not have jurisdiction to
stay the Certificate itself, the Chongs argue that this Court
should exercise its equitable power to stay consideration of
MVP's request for a preliminary injunction. They contend
that FERC's tolling order “gores [them] on the
horns of a dilemma”: MVP will contend that the Chongs
may only challenge the FERC Certificate before FERC and the
court of appeals, while the tolling order indefinitely delays
such administrative and judicial review (Dkt. No. 31 at 4).
According to the Chongs, they may be deprived of their
property in this proceeding before the validity of the FERC
Certificate is fully resolved, resulting in a “a clear
case of hardship” and a “scandal to the
administration of justice” that warrants the imposition
of a stay (Dkt. No. 59 at 2, 5).
support of their request, the Chongs rely solely on
Landis v. North American Co., 299 U.S. 248 (1936),
which discusses the Court's inherent equitable authority.
In Landis, the Supreme Court held that “the
power to stay proceedings is incidental to the power inherent
in every court to control the disposition of the causes on
its docket with economy of time and effort for itself, for
counsel, and for litigants.” Id. at 254.
“[T]he suppliant for a stay must make out a clear case
of hardship or inequity in being required to go forward, if
there is even a fair possibility that the stay for which he
prays will work damage to someone else.” Foreclosing
the district courts' power to issue such stays might
result in “scandal[s] to the administration of
justice.” Id. at 255.
Court acknowledges that it possesses inherent authority to
stay consideration of MVP's request for a preliminary
injunction, but concludes that several factors weigh against
such an exercise of discretion in this case. First, the
Chongs seek unusual relief. They do not ask the Court to stay
this condemnation action in its entirety, but instead request
equitable relief from the possibility that MVP will receive
equitable relief. Yet the Court's analysis of whether MVP
is entitled to a preliminary injunction necessarily will take
into account whether “the balance of equities tips in
[MVP's] favor.” Winter, 555 U.S. at 20.
The Chongs' motion therefore is a mere redundancy.
the Chongs' argument would warrant similar stays in a
broad category of eminent domain cases under the NGA. A
review of the cases cited within this Memorandum Opinion and
Order establishes that a significant number of eminent domain
proceedings commence before administrative and judicial
review are complete. See, e.g., Sabal
Trail, No. 3:16-cv-173, 2016 WL 8900100, at *4
(collecting cases). In essence, the Chongs disagree with the
structure of the NGA, which allows natural-gas companies to
exercise the power of eminent domain upon receipt of a
Certificate rather than after the Certificate has been
subject to judicial review. The NGA also provides a remedy,
however, by providing that FERC or the court of appeals may
stay a Certificate.
the Chongs' attorneys have unsuccessfully requested such
a stay from both FERC and the United States Court of Appeals
for the District of Columbia, both of which are fully aware
that district courts hold the authority to grant preliminary
injunctions in eminent domain cases (Dkt. Nos. 31-2; 47 at
6-7). That the Chongs have been unable to obtain the relief
they seek in two other forums does not warrant an exercise of
this Court's equitable power. Therefore, the Court
DENIES the Chongs' Motion for Stay of
Equitable Proceedings on Plaintiff's Motion for Immediate
Possession (Dkt. No. 31).
MOTION TO DISMISS AND MOTION TO STRIKE
December 21, 2017, several defendants moved to dismiss
MVP's complaint for lack of subject matter jurisdiction
and for failure to state a claim upon which relief can be
granted (Dkt. No. 23-1). MVP moved to strike the motion to
dismiss, arguing that it is procedurally improper (Dkt. No.
Civ. P. 71.1 governs “proceedings to condemn real . . .
property by eminent domain.” The rule provides for only
one responsive pleading: “A defendant that has an
objection or defense to the taking must serve an answer
within 21 days after being served with the notice.”
Among other things, such an answer is required to
“state all the defendant's objections and defenses
to the taking.” Fed.R.Civ.P. 71.1(e)(2). Moreover, the
rule expressly states that “[a] defendant waives all
objections and defenses not stated in its answer. No other
pleading or motion asserting an additional objection or
defense is allowed.” Fed.R.Civ.P. 71.1(e)(3). As the
advisory notes regarding Rule 71.1 explain,
“[d]eparting from the scheme of Rule 12, subdivision
(e) requires all defenses and objections to be presented in
an answer and does not authorize a preliminary motion. There
is little need for the latter in a condemnation
proceeding.” The plain language of Rule 71.1 makes
clear that motions to dismiss are not permitted in
condemnation proceedings, rendering the defendants'
motion to dismiss procedurally improper. See Atl.
Seaboard Corp. v. Van Sterkenburg, 318 F.2d 455, 458
(4th Cir. 1963) (“We need not consider the dubious
merits of the . . . motion to dismiss, for [it was] not [an]
allowable pleading.”). Therefore, the Court
GRANTS MVP's motion to strike (Dkt. No.
28) and DENIES AS MOOT the defendants'
motion to dismiss (Dkt. No. 23-1). Nonetheless, to the extent
the defendants raise similar arguments in their answers and
responses to MVP's motion for summary judgment, they are
addressed below. Accord Sabal Trail, 3:16-cv-173,
2016 WL 8900100, at *3.
MOTION FOR PARTIAL SUMMARY JUDGMENT
Court may only exercise its equitable power to grant a
preliminary injunction after determining “that a gas
company has the substantive right to condemn property under
the NGA.” Mid Atlantic Express, LLC v. Baltimore
Cty., Md., 410 F. App'x 653, 657 (4th Cir. 2011)
(unpublished decision) (quoting Sage, 361 F.3d at
828). As discussed, to establish that it has the right to
condemn, MVP must demonstrate only that 1) it holds a FERC
Certificate, 2) it needs to acquire the easements, and 3) it
has been unable to acquire them by agreement. 15 U.S.C.
§ 717f(h). MVP has satisfied each of these elements, and
is thus entitled to partial summary judgment regarding its
right to condemn.
judgment is appropriate where the “depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials” establish that “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c)(1)(A). When ruling on a motion for summary
judgment, the Court reviews all the evidence “in the
light most favorable” to the nonmoving party.
Providence Square Assocs., L.L.C. v. G.D.F.,
Inc., 211 F.3d 846, 850 (4th Cir. 2000). The Court must
avoid weighing the evidence or determining its truth and
limit its inquiry solely to a determination of whether
genuine issues of triable fact exist. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
moving party bears the initial burden of informing the Court
of the basis for the motion and of establishing the
nonexistence of genuine issues of fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party
has made the necessary showing, the non-moving party
“must set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S.
at 256 (internal quotation marks and citation omitted). The
“mere existence of a scintilla of evidence”
favoring the non-moving party will not prevent the entry of
summary judgment; the evidence must be such that a rational
trier of fact could reasonably find for the nonmoving party.
Id. at 248-52.
MVP holds a FERC certificate.
parties cannot dispute that FERC issued MVP a Certificate on
October 13, 2017 (Dkt. No. 1-2). Various defendants argue,
however, that the FERC Certificate's conditions render it
ineffective to grant the power of eminent domain under the
NGA, thus divesting the Court of jurisdiction (Dkt. Nos. 69
at 3-4; 70 at 2-5). That argument is without merit.
to 15 U.S.C. § 717f(e), FERC “shall have the power
to attach to the issuance of the certificate and to the
exercise of the rights granted thereunder such reasonable
terms and conditions as the public convenience and necessity
may require.” FERC is capable of imposing conditions
precedent to the exercise of eminent domain power, but it did
not do so in this case. See Mid-Atlantic, 410 F.
App'x 653 (dismissing case in which the FERC Certificate
contained conditions that must be fulfilled prior to
exercising the power of eminent domain). In addition, FERC
can condition actual approval of a project on the fulfillment
of certain conditions. See, e.g., Del. Dep't
of Nat. Resources & Envtl. Control v. FERC, 558 F.3d
575, 577-79 (D.C. Cir. 2009) (noting that a
“conditional approval” could not approve a
project without fulfillment of a condition).
the FERC Certificate includes numerous environmental
conditions, which require MVP to obtain a variety of permits
and approvals from state and federal agencies at various
stages of the Project (Dkt. No. 1-2 at app. C). There is
nothing in the FERC Certificate, however, that conditions
either approval of the Project or MVP's exercise of
eminent domain under the NGA. Instead, FERC intended to
confer the power of eminent domain. Id. at 27.
case, therefore, “the FERC Order cannot reasonably be
read to prohibit [MVP] from exercising eminent domain
authority until it has complied with all conditions set forth
in the Appendix.” Constitution Pipeline Co., LLC v.
A Permanent Easement for 0.42 Acres & Temporary Easements
for 0.46 Acres, No. 1:14-CV-2057, 2015 WL 12556145, at
*2 (N.D.N.Y. Apr. 17, 2015). When FERC's conditions are
not precedent to approval of a project or the exercise of
eminent domain, whether an applicant has complied with those
conditions is an issue for FERC and cannot delay the exercise
of eminent domain. See, e.g., Sabal Trail
Transmission, LLC v. 7.72 Acres in Lew Cty., Ala., No.
3:16-CV-173-WKW, 2016 WL 3248666, at *4 (M.D. Ala. June 8,
2016) (“There is no basis to delay the condemnation
proceedings because any failure to comply with the FERC
certificate is an issue for FERC - not this court at this
stage in the proceedings.”); Columbia Gas
Transmission, LLC v. 370 Acres, More or Less, No.
1:14-0469-RDB, 2014 WL 2092880, at *4 (D. Md. Oct. 9, 2014).
the defendants argue that the environmental conditions
contained within the Certificate undermine its validity in
this Court. They argue that § 717f(e) allows FERC to
impose only limitations on MVP's operation of the
pipeline, not prerequisites to MVP's Project. They argue
that FERC exceeded its authority by imposing conditions that
must be satisfied prior to construction, such as acquiring
necessary permits. They ask the Court to find that MVP does
not truly hold a FERC Certificate (Dkt. No. 70 at 3-5). The
Court rejects these arguments for two reasons.
analyzing the propriety and validity of a FERC Certificate is
not the Court's role in the statutory scheme. As
summarized by the District of Maryland:
A district court's role in proceedings involving FERC
certificates is circumscribed by statute. The district
court's role is simply to evaluate the scope of the
certificate and to order condemnation of property as
authorized in the certificate. Disputes over the reasons and
procedures for issuing certificates of public convenience and
necessity must be brought to the FERC.
Columbia Gas, No. 1:14-0469-RDB, 2014 WL 2092880, at
*3 (quoting Columbia Gas Transmission, LLC v. 76 Acres
More or Less, Civ. A. No. Elh-14-0110, 2014 WL 2960836
(D. Md. June 27, 2014)). “The NGA does not allow
landowners to collaterally attack the FERC certificate in the
district court, it only allows enforcement of its
provisions.” Transwestern Pipeline Co. v. 17.19
Acres of Property Located in Maricopa Cty., 550
F.3d 770, 778 n.9 (9th Cir. 2008) (citing Williams
Nat'l Gas Co. v. City of Oklahoma City, 890 F.2d
255, 264 (10th Cir. 1989)); see also Gas Transmission
Northwest, LLC v. 15.83 Acres of Permanent Easement, 126
F.Supp.3d 1192, 1198 (D. Or. 2015). Therefore, the
defendants' suggestion that this Court declare the FERC
Certificate invalid is completely improper.
even if the Court had jurisdiction to consider the validity
of MVP's Certificate, the substance of the
defendants' argument is of dubious merit. The NGA simply
does not contain a provision limiting the exercise of eminent
domain when conditions have not been met, and “[c]ourts
have repeatedly rejected similar arguments that a pipeline
company cannot exercise eminent domain because a FERC Order
is conditioned.” Transcon. Gas Pipe Line Co.,
LLC v. Permanent Easement for 2.14 Acres, No.
17-715, 2017 WL 3624250, at *6 (E.D. Pa. Aug. 23, 2017)
(collecting cases). The plain language of § 717f(e)
permits FERC to attach conditions to the FERC Certificate,
not any particular kind of condition.
the cases cited by the defendants do not support their
argument. For instance, they citing Northern Natural Gas
Co., Division of InterNorth, Inc. v. FERC, 827
F.2d 779, 782 (D.C. Cir. 1987), they argue that FERC may only
impose “conditions on the terms of the proposed service
itself, ” rather than pre-construction conditions (Dkt.
No. 70 at 3). Northern Natural simply does not stand
for this limited proposition. There, the question presented
was “whether the Commission lawfully imposed upon the
certificate the condition that [the natural-gas company]
credit fixed-cost related revenues from its proposed discount
resale service to the customers of its existing non-discount
resale service.” N. Nat., 827 F.2d at 781. In
Northern Natural, the circuit court reaffirmed that
§ 717f(e) allows FERC to “impos[e] conditions on
the terms of the proposed service itself, ” not
“on the terms of services not directly before the
Commission.” Id. at 782. That ruling on the
scope of § 717f(e) is thus wholly distinguishable from
the facts of this case, where FERC imposed conditions on the
construction of MVP's Project itself, rather than a
separate “service not before it in the certificate
proceeding.” Id. at 783 (quoting Panhandle
E. Pipe Line Co. v. FERC, 613 F.2d 1120, 1133 (D.C. Cir.
summary, MVP's FERC Certificate is effective in this
Court and does not include a condition limiting the exercise
of eminent domain. The Court lacks jurisdiction to consider
the defendants' challenge regarding the validity of the
Certificate, and thus ...