II 

116TH CONGRESS 

2D SESSION S. 4673 

To amend the Natural Gas Act to require the Federal Energy Regulatory 

Commission to consider certain factors in issuing certificates of public 

convenience and necessity under that Act, to modify the requirements 

for the right to exercise eminent domain in construction of pipelines 

under that Act, to provide that the right of eminent domain may not 

be exercised under that Act for projects for the exportation of natural 

gas, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 23, 2020 

Mr. WYDEN (for himself and Mr. MERKLEY) introduced the following bill; 

which was read twice and referred to the Committee on Commerce, 

Science, and Transportation 

A BILL 

To amend the Natural Gas Act to require the Federal Energy Regulatory Commission to consider certain factors 

in issuing certificates of public convenience and necessity 

under that Act, to modify the requirements for the right 

to exercise eminent domain in construction of pipelines 

under that Act, to provide that the right of eminent 

domain may not be exercised under that Act for projects 

for the exportation of natural gas, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Reaffirming Property 

3 Rights Through Natural Gas Act Modernization Act’’. 

4 SEC. 2. NO PRESUMPTION OF PUBLIC INTEREST. 

5 Section 3 of the Natural Gas Act (15 U.S.C. 717b) 

6 is amended by adding at the end the following: 

7 ‘‘(g) NO PRESUMPTION OF PUBLIC INTEREST.—In 

8 determining whether a proposed exportation of natural gas 

9 is consistent with the public interest under subsection (a), 

10 the Commission, and any other Federal agency that may 

11 be involved in the determination, shall not make a pre12 sumption that the exportation is consistent with the public 

13 interest.’’. 

14 SEC. 3. BALANCING CONSIDERATIONS OF PUBLIC NECES15 SITY. 

16 Section 7(e) of the Natural Gas Act (15 U.S.C. 

17 717f(e)) is amended— 

18 (1) in the second sentence, by striking ‘‘The 

19 Commission’’ and inserting the following: 

20 ‘‘(2) TERMS AND CONDITIONS.—The Commis21 sion’’; 

22 (2) by striking ‘‘(e) Except’’ and inserting the 

23 following: 

24 ‘‘(e) PROCEDURE.— 

25 ‘‘(1) IN GENERAL.—Except’’; and 

26 (3) by adding at the end the following: 


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1 ‘‘(3) FACTORS FOR CONSIDERATION.—In deter2 mining whether a proposed project is or will be re3 quired by the present or future public convenience 

4 and necessity under paragraph (1), the Commission 

5 shall make findings of fact, based on the evidence in 

6 the record before the Commission, regarding, at a 

7 minimum— 

8 ‘‘(A) the private property rights of any im9 pacted landowners, including viable alternatives 

10 to eminent domain proceedings; 

11 ‘‘(B) whether the benefits of the project 

12 accrue substantially to the public at large, rath13 er than to the applicant or a limited private in14 terest; 

15 ‘‘(C) the practicability of alternatives and 

16 substitutes to the project, including whether 

17 there exists available capacity of— 

18 ‘‘(i) natural gas in a similar project; 

19 or 

20 ‘‘(ii) a substitute to natural gas; 

21 ‘‘(D) any wildlife and ecological impacts of 

22 the project, including impacts recognized in the 

23 States and local jurisdictions in which the 

24 project is proposed to be located; 


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1 ‘‘(E) the net noxious chemical and green2 house gas emissions that the project would emit 

3 or offset during the course of the construction 

4 and service life of the project; and 

5 ‘‘(F) the extent to which the project in6 creases environmental and health burdens to 

7 low-income communities and communities of 

8 color.’’. 

9 SEC. 4. NOTICE TO LANDOWNERS. 

10 (a) INITIAL NOTICE TO AFFECTED LANDOWNERS.— 

11 Section 7(d) of the Natural Gas Act (15 U.S.C. 717f(d)) 

12 is amended— 

13 (1) by striking ‘‘(d) Application for certificates’’ 

14 and inserting the following: 

15 ‘‘(d) APPLICATIONS.— 

16 ‘‘(1) IN GENERAL.—An application for a certifi17 cate of public convenience and necessity under this 

18 section’’; and 

19 (2) by adding at the end the following: 

20 ‘‘(2) REQUIREMENTS FOR NOTICE.— 

21 ‘‘(A) IN GENERAL.—Before serving a no22 tice described in paragraph (1), the applicant 

23 shall submit the notice to the Commission for 

24 review and approval. 


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1 ‘‘(B) APPROVAL.—The Commission shall 

2 only approve a notice under subparagraph (A) 

3 if the notice satisfies all applicable requirements 

4 of this section. 

5 ‘‘(C) INSTRUCTIONS FOR MOTIONS TO IN6 TERVENE.—A notice described in paragraph (1) 

7 shall include complete instructions regarding 

8 the method by which a notice recipient can 

9 move to intervene, through electronic or paper 

10 filing, in the application process, including— 

11 ‘‘(i) a clear statement of the required 

12 contents of such a motion to intervene; 

13 ‘‘(ii) a separate, bolded section in14 forming notice recipients that the notice 

15 recipients must intervene in the application 

16 process to preserve the right to judicial re17 view; and 

18 ‘‘(iii) the deadline for moving to inter19 vene, which shall be not later than the date 

20 that is 60 days after the date on which the 

21 notice recipient is confirmed to have re22 ceived the notice. 

23 ‘‘(D) REQUIREMENT.—The applicant shall 

24 submit to the Commission, together with the 

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1 sons to whom the applicant is required to serve 

2 the notice, including— 

3 ‘‘(i) the address of each such person; 

4 and 

5 ‘‘(ii) after receipt of the notice by 

6 each such person, confirmation of receipt 

7 of the notice. 

8 ‘‘(E) DISCLOSURE.—On request by any 

9 person, not later than 15 days after the date of 

10 receipt of the request, the Commission shall dis11 close to that person the list submitted under 

12 subparagraph (D).’’. 

13 (b) SUBSEQUENT NOTICE TO AFFECTED LAND14 OWNERS.—Section 7(e) of the Natural Gas Act (15 U.S.C. 

15 717f(e)) (as amended by section 3) is amended by adding 

16 at the end the following: 

17 ‘‘(4) REHEARING NOTICE REQUIREMENT.— 

18 ‘‘(A) IN GENERAL.—Not later than 15 

19 days after the date on which a certificate of 

20 public convenience and necessity is issued under 

21 paragraph (1), the holder of the certificate of 

22 public convenience and necessity shall serve to 

23 all persons that received notice under sub24 section (d) an actual notice of the decision of 


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1 the Commission to issue the certificate of public 

2 convenience and necessity. 

3 ‘‘(B) CONTENTS.—A notice under sub4 paragraph (A) shall include complete instruc5 tions regarding the method by which a notice 

6 recipient can petition for a rehearing of the de7 cision of the Commission to issue the certificate 

8 of public convenience and necessity, including— 

9 ‘‘(i) the required contents of a petition 

10 for rehearing; 

11 ‘‘(ii) a separate, bolded section in12 forming notice recipients that the notice 

13 recipients must petition for a rehearing on 

14 an issue covered by the certificate to pre15 serve the right to judicial review on that 

16 issue; and 

17 ‘‘(iii) information regarding the re18 quirements for rehearing and judicial re19 view under subsections (a) and (b) of sec20 tion 19 that apply to the petition for re21 hearing, including a specific reference to 

22 any relevant deadlines applicable to the pe23 tition.’’. 


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1 SEC. 5. REQUIREMENTS FOR EXERCISE OF EMINENT DO2 MAIN. 

3 (a) IN GENERAL.—Section 7(h) of the Natural Gas 

4 Act (15 U.S.C. 717f(h)) is amended— 

5 (1) in the second sentence— 

6 (A) by striking ‘‘where the property is situ7 ated: Provided, That the’’ and inserting ‘‘in 

8 which the property is situated, subject to the 

9 condition that the’’; and 

10 (B) by striking ‘‘The practice’’ and insert11 ing the following: 

12 ‘‘(2) PRACTICE AND PROCEDURE.—The prac13 tice’’; 

14 (2) by striking ‘‘(h) When any holder’’ and in15 serting the following: 

16 ‘‘(h) EMINENT DOMAIN.— 

17 ‘‘(1) IN GENERAL.—Except as provided in para18 graph (4), in any case in which a holder’’; and 

19 (3) by adding at the end the following: 

20 ‘‘(3) REQUIREMENTS.— 

21 ‘‘(A) IN GENERAL.—Subject to subpara22 graph (B), a holder of a certificate of public 

23 convenience and necessity may not exercise the 

24 right of eminent domain for a project under 

25 this subsection until the latest of, as applica26 ble— 


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1 ‘‘(i) the date on which the holder has 

2 received all required certifications and au3 thorizations for the project from any Fed4 eral agencies (other than the Commission) 

5 or State administrative agencies acting 

6 pursuant to Federal law; 

7 ‘‘(ii) the date on which the applicant 

8 serves each notice in accordance with sub9 section (e)(4); and 

10 ‘‘(iii) the date on which each timely 

11 motion to intervene relating to the certifi12 cate under subsection (d)(2)(C) has been 

13 acted on by the Commission. 

14 ‘‘(B) EFFECT OF VACATED OR RESCINDED

15 CERTIFICATION OR AUTHORIZATION.—If a cer16 tification or authorization for a project from 

17 any Federal agency (other than the Commis18 sion) or State administrative agency acting pur19 suant to Federal law is rescinded or vacated— 

20 ‘‘(i) the holder of a certificate of pub21 lic convenience and necessity for the 

22 project may not exercise the right of emi23 nent domain for the project under this 

24 subsection; and 


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1 ‘‘(ii) if land has already been acquired 

2 by the exercise of the right of eminent do3 main under this subsection, construction of 

4 the project on that land shall be prohib5 ited.’’. 

6 (b) LIMITATION ON USE OF EMINENT DOMAIN FOR

7 EXPORTS.—Section 7(h) of the Natural Gas Act (15 

8 U.S.C. 717f(h)) (as amended by subsection (a)) is amend9 ed by adding at the end the following: 

10 ‘‘(4) LIMITATION ON USE OF EMINENT DOMAIN

11 FOR EXPORTS.—A holder of a certificate of public 

12 convenience and necessity may not exercise the right 

13 of eminent domain under this subsection if the 

14 project covered by the certificate is a project to be 

15 constructed substantially for the purpose of trans16 porting natural gas to an LNG terminal for export 

17 from the United States to a foreign country.’’. 

18 SEC. 6. REQUIREMENT TO EXECUTE PROJECT ONLY FOR 

19 CERTAIN PURPOSES. 

20 Section 7 of the Natural Gas Act (15 U.S.C. 717f) 

21 is amended by adding at the end the following: 

22 ‘‘(i) REQUIREMENT TO EXECUTE PROJECT ONLY

23 FOR CERTAIN PURPOSES.—The holder of a certificate of 

24 public convenience and necessity shall execute the project 


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1 covered by the certificate only for the purposes that 

2 were— 

3 ‘‘(1) expressly described in the application for 

4 the certificate; and 

5 ‘‘(2) communicated to— 

6 ‘‘(A) the Commission; 

7 ‘‘(B) the persons that received a notice of 

8 the application for the certificate under sub9 section (d); and 

10 ‘‘(C) the public.’’. 

11 SEC. 7. CONDITIONS UNDER WHICH CERTIFICATE OF PUB12 LIC CONVENIENCE AND NECESSITY MAY BE 

13 RESCINDED. 

14 Section 7 of the Natural Gas Act (15 U.S.C. 717f) 

15 (as amended by section 6) is amended by adding at the 

16 end the following: 

17 ‘‘(j) CONDITIONS UNDER WHICH CERTIFICATE MAY

18 BE RESCINDED.— 

19 ‘‘(1) IN GENERAL.—A certificate of public con20 venience and necessity shall be rescinded on a deter21 mination by the Commission, or on a determination 

22 after a rehearing, that— 

23 ‘‘(A) the scope of the project covered by 

24 the certificate has changed materially; 


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1 ‘‘(B) the rationale of public convenience 

2 and necessity by which the Commission issued 

3 the certificate has changed; or 

4 ‘‘(C) the applicant has failed to begin sub5 stantial construction on the project covered by 

6 the certificate, such that the observed delay is 

7 not consistent with a prior finding of public 

8 convenience and necessity. 

9 ‘‘(2) FAILURE TO INITIATE SUBSTANTIAL CON10 STRUCTION.—If the holder of a certificate of public 

11 convenience and necessity fails to initiate substantial 

12 construction of the project covered by the certificate 

13 by the date specified by the certificate, the certifi14 cate shall be rescinded on that date. 

15 ‘‘(3) REAPPLICATION.—The holder of a certifi16 cate of public convenience and necessity rescinded 

17 under paragraph (1) or (2) may reapply for the cer18 tificate in accordance with the applicable require19 ments of this Act. 

20 ‘‘(4) REQUIREMENT.—Any certificate of public 

21 convenience and necessity that is issued by the Com22 mission shall include the condition that title in and 

23 to any property that was acquired under subsection 

24 (h)(1) by the exercise of the right of eminent domain 

25 pursuant to a certificate of public convenience and 


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1 necessity that was rescinded under paragraph (1) or 

2 (2) shall immediately revert to the prior property 

3 owner.’’. 

4 SEC. 8. REQUIREMENTS FOR ACQUISITION OF PROPERTY. 

5 Section 7 of the Natural Gas Act (15 U.S.C. 717f) 

6 (as amended by section 7) is amended by adding at the 

7 end the following: 

8 ‘‘(k) REQUIREMENTS FOR ACQUISITION OF PROP9 ERTY.— 

10 ‘‘(1) APPRAISAL.— 

11 ‘‘(A) IN GENERAL.—A holder of a certifi12 cate of public convenience and necessity seeking 

13 to acquire property for the project covered by 

14 the certificate by just compensation or the exer15 cise of the right of eminent domain under sub16 section (h)(1) shall, prior to making an offer of 

17 just compensation or exercising that right, ap18 praise the property in accordance with— 

19 ‘‘(i) the Uniform Appraisal Standards 

20 for Federal Land Acquisitions; and 

21 ‘‘(ii) the Uniform Standards of Pro22 fessional Appraisal Practice. 

23 ‘‘(B) OPPORTUNITY TO ACCOMPANY AP24 PRAISER DURING INSPECTION.—The owner of 

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1 paragraph (A), or the designated representative 

2 of the owner, shall be given an opportunity to 

3 accompany the appraiser during the inspection 

4 by the appraiser of the property. 

5 ‘‘(2) JUST COMPENSATION.—A holder of a cer6 tificate of public convenience and necessity seeking 

7 to acquire property for the project covered by the 

8 certificate by just compensation shall make the offer 

9 of just compensation— 

10 ‘‘(A) in writing; and 

11 ‘‘(B) in an amount that— 

12 ‘‘(i) is not less than the fair market 

13 value of the property, as defined by the ap14 praiser; and 

15 ‘‘(ii) includes just compensation for 

16 any damages that would result to the re17 maining property of the owner. 

18 ‘‘(3) SURRENDER OF PROPERTY.—The owner of 

19 property to be acquired by a holder of a certificate 

20 of public convenience and necessity shall not be re21 quired to surrender possession of the property be22 fore, as applicable— 

23 ‘‘(A) the holder pays the agreed purchase 

24 price; or 


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1 ‘‘(B) if the property is acquired through a 

2 proceeding under which the holder exercised the 

3 right of eminent domain under subsection 

4 (h)(1), the owner receives the compensation 

5 awarded by the court in that proceeding.’’. 

6 SEC. 9. APPEAL RIGHTS TO FEDERAL ENERGY REGU7 LATORY COMMISSION. 

8 (a) IN GENERAL.—Section 19(a) of the Natural Gas 

9 Act (15 U.S.C. 717r(a)) is amended— 

10 (1) in the first sentence, by striking ‘‘(a) Any 

11 person, State, municipality, or State commission ag12 grieved by an order issued by the Commission in a 

13 proceeding under this act to which such person, 

14 State, municipality, or State commission is a party 

15 may apply’’ and inserting the following: 

16 ‘‘(a) REHEARING.— 

17 ‘‘(1) PETITIONS FOR REHEARING.— 

18 ‘‘(A) IN GENERAL.—Any person, State, 

19 municipality, or State commission that is ag20 grieved by an order issued by the Commission 

21 in a proceeding under this Act to which the per22 son, State, municipality, or State commission is 

23 a party may petition’’; 

24 (2) by striking the second sentence and insert25 ing the following: 


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1 ‘‘(B) LIMITATION.—No proceeding to re2 view an order of the Commission shall be 

3 brought by a person unless the person has sub4 mitted to the Commission a petition for rehear5 ing regarding the order in accordance with this 

6 paragraph. 

7 ‘‘(C) CONTENTS.—A petition for rehearing 

8 under this paragraph shall describe specifically 

9 the one or more grounds on which the petition 

10 is based.’’; 

11 (3) in the third sentence, by striking ‘‘Upon 

12 such application’’ and inserting the following: 

13 ‘‘(2) ACTION BY COMMISSION.— 

14 ‘‘(A) IN GENERAL.—On receipt of a peti15 tion under paragraph (1),’’; 

16 (4) by striking the fourth and fifth sentences 

17 and inserting the following: 

18 ‘‘(B) EFFECT OF FAILURE TO ACT.—In 

19 any case in which the Commission fails to issue 

20 a final agency action that is reviewable under 

21 subsection (b) with respect to a petition for re22 hearing by the date that is 60 days after the 

23 date on which the petition is filed, the petition 

24 shall be deemed to be denied.’’; and 


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1 (5) in the sixth sentence, by striking ‘‘Until the 

2 record in a proceeding shall have been’’ and insert3 ing the following: 

4 ‘‘(C) DEADLINE FOR ACTION.—Until the 

5 date on which the record relating to a pro6 ceeding is’’. 

7 (b) STAY OF COMMISSION ORDER.—Section 19(c) of 

8 the Natural Gas Act (15 U.S.C. 717r(c)) is amended— 

9 (1) in the second sentence, by striking ‘‘The 

10 commencement’’ and inserting the following: 

11 ‘‘(4) EFFECT OF COMMENCEMENT OF PRO12 CEEDINGS.—The commencement’’; 

13 (2) in the first sentence, by striking ‘‘(c) The 

14 filing of an application’’ and inserting the following: 

15 ‘‘(c) STAY OF COMMISSION ORDER.— 

16 ‘‘(1) IN GENERAL.—The filing of a petition’’; 

17 (3) in paragraph (1) (as so designated)— 

18 (A) by striking ‘‘not, unless specifically or19 dered by the Commission,’’; and 

20 (B) by inserting ‘‘during the period in 

21 which the Commission is considering the peti22 tion for rehearing’’ before the period at the end; 

23 and 

24 (4) by inserting after paragraph (1) (as so des25 ignated) the following: 


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1 ‘‘(2) EFFECT OF GRANT OF REHEARING.— 

2 ‘‘(A) IN GENERAL.—If the Commission 

3 grants a rehearing on the merits of an order of 

4 the Commission pursuant to a petition for re5 hearing, the order shall be deemed to be 

6 nonfinal for purposes of section 7(h). 

7 ‘‘(B) EMINENT DOMAIN.—With respect to 

8 an order of the Commission that is deemed to 

9 be nonfinal under subparagraph (A), beginning 

10 on the date on which the rehearing proceedings 

11 commence under subsection (b) with respect to 

12 the order and ending on the date on which the 

13 applicable court issues a final judgment and de14 cree under that subsection with respect to the 

15 order— 

16 ‘‘(i) no district or State court shall 

17 have jurisdiction over eminent domain pro18 ceedings under section 7(h) that are com19 menced pursuant to that order; and 

20 ‘‘(ii) the holder of a certificate of pub21 lic convenience and necessity issued pursu22 ant to the order may not exercise the right 

23 of eminent domain under section 7(h). 

24 ‘‘(3) EFFECT OF DENIAL OF REHEARING.—If 

25 the Commission denies a petition for rehearing or 


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1 fails to act on the petition for rehearing by the dead2 line described in subsection (a)(2)(B), the order that 

3 is the subject of the petition shall be deemed to be 

4 final for all purposes.’’. 

5 (c) TECHNICAL AMENDMENTS.—Section 19(b) of the 

6 Natural Gas Act (15 U.S.C. 717r(b)) is amended— 

7 (1) by striking ‘‘application’’ each place it ap8 pears and inserting ‘‘petition’’; and 

9 (2) by striking ‘‘such petition’’ each place it ap10 pears and inserting ‘‘the written petition praying 

11 that the order of the Commission be modified or set 

12 aside in whole or in part’’. 

Æ 


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