Title: Landowner Fairness Act
Policy area: Energy

Summary:
Landowner Fairness Act
This bill limits the use of eminent domain to take private property for the construction and operation of a natural gas pipeline facility.
Specifically, this bill ends the legal presumption that natural gas exports are by definition in the public interest. In addition, the Federal Energy Regulatory Commission must consider certain factors in issuing certificates of public convenience and necessity for natural gas projects. Finally, the bill prohibits the holder of a certification of public convenience and necessity from exercising the right of eminent domain for a pipeline designed to export liquefied natural gas to a foreign country.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 641 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                 S. 641

 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

                             March 9, 2021

  Mr. Wyden (for himself, Mr. Merkley, and Mr. Booker) 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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Landowner Fairness Act''.

SEC. 2. NO PRESUMPTION OF PUBLIC INTEREST.

    Section 3 of the Natural Gas Act (15 U.S.C. 717b) is amended by 
adding at the end the following:
    ``(g) No Presumption of Public Interest.--In determining whether a 
proposed exportation of natural gas is consistent with the public 
interest under subsection (a), the Commission, and any other Federal 
agency that may be involved in the determination, shall not make a 
presumption that the exportation is consistent with the public 
interest.''.

SEC. 3. BALANCING CONSIDERATIONS OF PUBLIC NECESSITY.

    Section 7(e) of the Natural Gas Act (15 U.S.C. 717f(e)) is 
amended--
            (1) in the second sentence, by striking ``The Commission'' 
        and inserting the following:
            ``(2) Terms and conditions.--The Commission'';
            (2) by striking ``(e) Except'' and inserting the following:
    ``(e) Procedure.--
            ``(1) In general.--Except''; and
            (3) by adding at the end the following:
            ``(3) Factors for consideration.--In determining whether a 
        proposed project is or will be required by the present or 
        future public convenience and necessity under paragraph (1), 
        the Commission shall make findings of fact, based on the 
        evidence in the record before the Commission, regarding, at a 
        minimum--
                    ``(A) the private property rights of any impacted 
                landowners, including viable alternatives to eminent 
                domain proceedings;
                    ``(B) whether the benefits of the project accrue 
                substantially to the public at large, rather than to 
                the applicant or a limited private interest;
                    ``(C) the practicability of alternatives and 
                substitutes to the project, including whether there 
                exists available capacity of--
                            ``(i) natural gas in a similar project; or
                            ``(ii) a substitute to natural gas;
                    ``(D) any wildlife and ecological impacts of the 
                project, including impacts recognized in the States and 
                local jurisdictions in which the project is proposed to 
                be located;
                    ``(E) the net noxious chemical and greenhouse gas 
                emissions that the project would emit or offset during 
                the course of the construction and service life of the 
                project; and
                    ``(F) the extent to which the project increases 
                environmental and health burdens to low-income 
                communities and communities of color.''.

SEC. 4. NOTICE TO LANDOWNERS.

    (a) Initial Notice to Affected Landowners.--Section 7(d) of the 
Natural Gas Act (15 U.S.C. 717f(d)) is amended--
            (1) by striking ``(d) Application for certificates'' and 
        inserting the following:
    ``(d) Applications.--
            ``(1) In general.--An application for a certificate of 
        public convenience and necessity under this section''; and
            (2) by adding at the end the following:
            ``(2) Requirements for notice.--
                    ``(A) In general.--Before serving a notice 
                described in paragraph (1), the applicant shall submit 
                the notice to the Commission for review and approval.
                    ``(B) Approval.--The Commission shall only approve 
                a notice under subparagraph (A) if the notice satisfies 
                all applicable requirements of this section.
                    ``(C) Instructions for motions to intervene.--A 
                notice described in paragraph (1) shall include 
                complete instructions regarding the method by which a 
                notice recipient can move to intervene, through 
                electronic or paper filing, in the application process, 
                including--
                            ``(i) a clear statement of the required 
                        contents of such a motion to intervene;
                            ``(ii) a separate, bolded section informing 
                        notice recipients that the notice recipients 
                        must intervene in the application process to 
                        preserve the right to judicial review; and
                            ``(iii) the deadline for moving to 
                        intervene, which shall be not later than the 
                        date that is 60 days after the date on which 
                        the notice recipient is confirmed to have 
                        received the notice.
                    ``(D) Requirement.--The applicant shall submit to 
                the Commission, together with the notice under 
                subparagraph (A), a list of all persons to whom the 
                applicant is required to serve the notice, including--
                            ``(i) the address of each such person; and
                            ``(ii) after receipt of the notice by each 
                        such person, confirmation of receipt of the 
                        notice.
                    ``(E) Disclosure.--On request by any person, not 
                later than 15 days after the date of receipt of the 
                request, the Commission shall disclose to that person 
                the list submitted under subparagraph (D).''.
    (b) Subsequent Notice to Affected Landowners.--Section 7(e) of the 
Natural Gas Act (15 U.S.C. 717f(e)) (as amended by section 3) is 
amended by adding at the end the following:
            ``(4) Rehearing notice requirement.--
                    ``(A) In general.--Not later than 15 days after the 
                date on which a certificate of public convenience and 
                necessity is issued under paragraph (1), the holder of 
                the certificate of public convenience and necessity 
                shall serve to all persons that received notice under 
                subsection (d) an actual notice of the decision of the 
                Commission to issue the certificate of public 
                convenience and necessity.
                    ``(B) Contents.--A notice under subparagraph (A) 
                shall include complete instructions regarding the 
                method by which a notice recipient can petition for a 
                rehearing of the decision of the Commission to issue 
                the certificate of public convenience and necessity, 
                including--
                            ``(i) the required contents of a petition 
                        for rehearing;
                            ``(ii) a separate, bolded section informing 
                        notice recipients that the notice recipients 
                        must petition for a rehearing on an issue 
                        covered by the certificate to preserve the 
                        right to judicial review on that issue; and
                            ``(iii) information regarding the 
                        requirements for rehearing and judicial review 
                        under subsections (a) and (b) of section 19 
                        that apply to the petition for rehearing, 
                        including a specific reference to any relevant 
                        deadlines applicable to the petition.''.

SEC. 5. REQUIREMENTS FOR EXERCISE OF EMINENT DOMAIN.

    (a) In General.--Section 7(h) of the Natural Gas Act (15 U.S.C. 
717f(h)) is amended--
            (1) in the second sentence--
                    (A) by striking ``where the property is situated: 
                Provided, That the'' and inserting ``in which the 
                property is situated, subject to the condition that 
                the''; and
                    (B) by striking ``The practice'' and inserting the 
                following:
            ``(2) Practice and procedure.--The practice'';
            (2) by striking ``(h) When any holder'' and inserting the 
        following:
    ``(h) Eminent Domain.--
            ``(1) In general.--Except as provided in paragraph (4), in 
        any case in which a holder''; and
            (3) by adding at the end the following:
            ``(3) Requirements.--
                    ``(A) In general.--Subject to subparagraph (B), a 
                holder of a certificate of public convenience and 
                necessity may not exercise the right of eminent domain 
                for a project under this subsection until the latest 
                of, as applicable--
                            ``(i) the date on which the holder has 
                        received all required certifications and 
                        authorizations for the project from any Federal 
                        agencies (other than the Commission) or State 
                        administrative agencies acting pursuant to 
                        Federal law;
                            ``(ii) the date on which the applicant 
                        serves each notice in accordance with 
                        subsection (e)(4); and
                            ``(iii) the date on which each timely 
                        motion to intervene relating to the certificate 
                        under subsection (d)(2)(C) has been acted on by 
                        the Commission.
                    ``(B) Effect of vacated or rescinded certification 
                or authorization.--If a certification or authorization 
                for a project from any Federal agency (other than the 
                Commission) or State administrative agency acting 
                pursuant to Federal law is rescinded or vacated--
                            ``(i) the holder of a certificate of public 
                        convenience and necessity for the project may 
                        not exercise the right of eminent domain for 
                        the project under this subsection; and
                            ``(ii) if land has already been acquired by 
                        the exercise of the right of eminent domain 
                        under this subsection, construction of the 
                        project on that land shall be prohibited.''.
    (b) Limitation on Use of Eminent Domain for Exports.--Section 7(h) 
of the Natural Gas Act (15 U.S.C. 717f(h)) (as amended by subsection 
(a)) is amended by adding at the end the following:
            ``(4) Limitation on use of eminent domain for exports.--A 
        holder of a certificate of public convenience and necessity may 
        not exercise the right of eminent domain under this subsection 
        if the project covered by the certificate is a project to be 
        constructed substantially for the purpose of transporting 
        natural gas to an LNG terminal for export from the United 
        States to a foreign country.''.

SEC. 6. REQUIREMENT TO EXECUTE PROJECT ONLY FOR CERTAIN PURPOSES.

    Section 7 of the Natural Gas Act (15 U.S.C. 717f) is amended by 
adding at the end the following:
    ``(i) Requirement To Execute Project Only for Certain Purposes.--
The holder of a certificate of public convenience and necessity shall 
execute the project covered by the certificate only for the purposes 
that were--
            ``(1) expressly described in the application for the 
        certificate; and
            ``(2) communicated to--
                    ``(A) the Commission;
                    ``(B) the persons that received a notice of the 
                application for the certificate under subsection (d); 
                and
                    ``(C) the public.''.

SEC. 7. CONDITIONS UNDER WHICH CERTIFICATE OF PUBLIC CONVENIENCE AND 
              NECESSITY MAY BE RESCINDED.

    Section 7 of the Natural Gas Act (15 U.S.C. 717f) (as amended by 
section 6) is amended by adding at the end the following:
    ``(j) Conditions Under Which Certificate May Be Rescinded.--
            ``(1) In general.--A certificate of public convenience and 
        necessity shall be rescinded on a determination by the 
        Commission, or on a determination after a rehearing, that--
                    ``(A) the scope of the project covered by the 
                certificate has changed materially;
                    ``(B) the rationale of public convenience and 
                necessity by which the Commission issued the 
                certificate has changed; or
                    ``(C) the applicant has failed to begin substantial 
                construction on the project covered by the certificate, 
                such that the observed delay is not consistent with a 
                prior finding of public convenience and necessity.
            ``(2) Failure to initiate substantial construction.--If the 
        holder of a certificate of public convenience and necessity 
        fails to initiate substantial construction of the project 
        covered by the certificate by the date specified by the 
        certificate, the certificate shall be rescinded on that date.
            ``(3) Reapplication.--The holder of a certificate of public 
        convenience and necessity rescinded under paragraph (1) or (2) 
        may reapply for the certificate in accordance with the 
        applicable requirements of this Act.
            ``(4) Requirement.--Any certificate of public convenience 
        and necessity that is issued by the Commission shall include 
        the condition that title in and to any property that was 
        acquired under subsection (h)(1) by the exercise of the right 
        of eminent domain pursuant to a certificate of public 
        convenience and necessity that was rescinded under paragraph 
        (1) or (2) shall immediately revert to the prior property 
        owner.''.

SEC. 8. REQUIREMENTS FOR ACQUISITION OF PROPERTY.

    Section 7 of the Natural Gas Act (15 U.S.C. 717f) (as amended by 
section 7) is amended by adding at the end the following:
    ``(k) Requirements for Acquisition of Property.--
            ``(1) Appraisal.--
                    ``(A) In general.--A holder of a certificate of 
                public convenience and necessity seeking to acquire 
                property for the project covered by the certificate by 
                just compensation or the exercise of the right of 
                eminent domain under subsection (h)(1) shall, prior to 
                making an offer of just compensation or exercising that 
                right, appraise the property in accordance with--
                            ``(i) the Uniform Appraisal Standards for 
                        Federal Land Acquisitions; and
                            ``(ii) the Uniform Standards of 
                        Professional Appraisal Practice.
                    ``(B) Opportunity to accompany appraiser during 
                inspection.--The owner of any property subject to an 
                appraisal under subparagraph (A), or the designated 
                representative of the owner, shall be given an 
                opportunity to accompany the appraiser during the 
                inspection by the appraiser of the property.
            ``(2) Just compensation.--A holder of a certificate of 
        public convenience and necessity seeking to acquire property 
        for the project covered by the certificate by just compensation 
        shall make the offer of just compensation--
                    ``(A) in writing; and
                    ``(B) in an amount that--
                            ``(i) is not less than the fair market 
                        value of the property, as defined by the 
                        appraiser; and
                            ``(ii) includes just compensation for any 
                        damages that would result to the remaining 
                        property of the owner.
            ``(3) Surrender of property.--The owner of property to be 
        acquired by a holder of a certificate of public convenience and 
        necessity shall not be required to surrender possession of the 
        property before, as applicable--
                    ``(A) the holder pays the agreed purchase price; or
                    ``(B) if the property is acquired through a 
                proceeding under which the holder exercised the right 
                of eminent domain under subsection (h)(1), the owner 
                receives the compensation awarded by the court in that 
                proceeding.''.

SEC. 9. APPEAL RIGHTS TO FEDERAL ENERGY REGULATORY COMMISSION.

    (a) In General.--Section 19(a) of the Natural Gas Act (15 U.S.C. 
717r(a)) is amended--
            (1) in the first sentence, by striking ``(a) Any person, 
        State, municipality, or State commission aggrieved by an order 
        issued by the Commission in a proceeding under this act to 
        which such person, State, municipality, or State commission is 
        a party may apply'' and inserting the following:
    ``(a) Rehearing.--
            ``(1) Petitions for rehearing.--
                    ``(A) In general.--Any person, State, municipality, 
                or State commission that is aggrieved by an order 
                issued by the Commission in a proceeding under this Act 
                to which the person, State, municipality, or State 
                commission is a party may petition'';
            (2) by striking the second sentence and inserting the 
        following:
                    ``(B) Limitation.--No proceeding to review an order 
                of the Commission shall be brought by a person unless 
                the person has submitted to the Commission a petition 
                for rehearing regarding the order in accordance with 
                this paragraph.
                    ``(C) Contents.--A petition for rehearing under 
                this paragraph shall describe specifically the one or 
                more grounds on which the petition is based.'';
            (3) in the third sentence, by striking ``Upon such 
        application'' and inserting the following:
            ``(2) Action by commission.--
                    ``(A) In general.--On receipt of a petition under 
                paragraph (1),'';
            (4) by striking the fourth and fifth sentences and 
        inserting the following:
                    ``(B) Effect of failure to act.--In any case in 
                which the Commission fails to issue a final agency 
                action that is reviewable under subsection (b) with 
                respect to a petition for rehearing by the date that is 
                60 days after the date on which the petition is filed, 
                the petition shall be deemed to be denied.''; and
            (5) in the sixth sentence, by striking ``Until the record 
        in a proceeding shall have been'' and inserting the following:
                    ``(C) Deadline for action.--Until the date on which 
                the record relating to a proceeding is''.
    (b) Stay of Commission Order.--Section 19(c) of the Natural Gas Act 
(15 U.S.C. 717r(c)) is amended--
            (1) in the second sentence, by striking ``The 
        commencement'' and inserting the following:
            ``(4) Effect of commencement of proceedings.--The 
        commencement'';
            (2) in the first sentence, by striking ``(c) The filing of 
        an application'' and inserting the following:
    ``(c) Stay of Commission Order.--
            ``(1) In general.--The filing of a petition'';
            (3) in paragraph (1) (as so designated)--
                    (A) by striking ``not, unless specifically ordered 
                by the Commission,''; and
                    (B) by inserting ``during the period in which the 
                Commission is considering the petition for rehearing'' 
                before the period at the end; and
            (4) by inserting after paragraph (1) (as so designated) the 
        following:
            ``(2) Effect of grant of rehearing.--
                    ``(A) In general.--If the Commission grants a 
                rehearing on the merits of an order of the Commission 
                pursuant to a petition for rehearing, the order shall 
                be deemed to be nonfinal for purposes of section 7(h).
                    ``(B) Eminent domain.--With respect to an order of 
                the Commission that is deemed to be nonfinal under 
                subparagraph (A), beginning on the date on which the 
                rehearing proceedings commence under subsection (b) 
                with respect to the order and ending on the date on 
                which the applicable court issues a final judgment and 
                decree under that subsection with respect to the 
                order--
                            ``(i) no district or State court shall have 
                        jurisdiction over eminent domain proceedings 
                        under section 7(h) that are commenced pursuant 
                        to that order; and
                            ``(ii) the holder of a certificate of 
                        public convenience and necessity issued 
                        pursuant to the order may not exercise the 
                        right of eminent domain under section 7(h).
            ``(3) Effect of denial of rehearing.--If the Commission 
        denies a petition for rehearing or fails to act on the petition 
        for rehearing by the deadline described in subsection 
        (a)(2)(B), the order that is the subject of the petition shall 
        be deemed to be final for all purposes.''.
    (c) Technical Amendments.--Section 19(b) of the Natural Gas Act (15 
U.S.C. 717r(b)) is amended--
            (1) by striking ``application'' each place it appears and 
        inserting ``petition''; and
            (2) by striking ``such petition'' each place it appears and 
        inserting ``the written petition praying that the order of the 
        Commission be modified or set aside in whole or in part''.
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