[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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