II 116th CONGRESS 2d Session S. 4673 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. Short title This Act may be cited as the Reaffirming Property Rights Through Natural Gas Act Modernization Act . 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. . 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. . 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. . 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. . 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. . 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. . 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. . 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 .