Landowner Fairness Act

II 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 fol- lowing bill; which was read twice and referred to the Committee on Com- merce, Science, and Transportation A BILL To amend the Natural Gas Act to require the Federal En- ergy 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 pur- poses. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 19:34 Apr 04, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S641.IS S641 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 641 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Landowner Fairness 2 Act’’. 3 SEC. 2. NO PRESUMPTION OF PUBLIC INTEREST. 4 Section 3 of the Natural Gas Act (15 U.S.C. 717b) 5 is amended by adding at the end the following: 6 ‘‘(g) NO PRESUMPTION OF PUBLIC INTEREST.—In 7 determining whether a proposed exportation of natural gas 8 is consistent with the public interest under subsection (a), 9 the Commission, and any other Federal agency that may 10 be involved in the determination, shall not make a pre- 11 sumption that the exportation is consistent with the public 12 interest.’’. 13 SEC. 3. BALANCING CONSIDERATIONS OF PUBLIC NECES- 14 SITY. 15 Section 7(e) of the Natural Gas Act (15 U.S.C. 16 717f(e)) is amended— 17 (1) in the second sentence, by striking ‘‘The 18 Commission’’ and inserting the following: 19 ‘‘(2) TERMS AND CONDITIONS.—The Commis- 20 sion’’; 21 (2) by striking ‘‘(e) Except’’ and inserting the 22 following: 23 ‘‘(e) PROCEDURE.— 24 ‘‘(1) IN GENERAL.—Except’’; and 25 (3) by adding at the end the following: 26 VerDate Sep 11 2014 19:34 Apr 04, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S641.IS S641 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 641 IS ‘‘(3) FACTORS FOR CONSIDERATION.—In deter- 1 mining whether a proposed project is or will be re- 2 quired by the present or future public convenience 3 and necessity under paragraph (1), the Commission 4 shall make findings of fact, based on the evidence in 5 the record before the Commission, regarding, at a 6 minimum— 7 ‘‘(A) the private property rights of any im- 8 pacted landowners, including viable alternatives 9 to eminent domain proceedings; 10 ‘‘(B) whether the benefits of the project 11 accrue substantially to the public at large, rath- 12 er than to the applicant or a limited private in- 13 terest; 14 ‘‘(C) the practicability of alternatives and 15 substitutes to the project, including whether 16 there exists available capacity of— 17 ‘‘(i) natural gas in a similar project; 18 or 19 ‘‘(ii) a substitute to natural gas; 20 ‘‘(D) any wildlife and ecological impacts of 21 the project, including impacts recognized in the 22 States and local jurisdictions in which the 23 project is proposed to be located; 24 VerDate Sep 11 2014 19:34 Apr 04, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S641.IS S641 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 641 IS ‘‘(E) the net noxious chemical and green- 1 house gas emissions that the project would emit 2 or offset during the course of the construction 3 and service life of the project; and 4 ‘‘(F) the extent to which the project in- 5 creases environmental and health burdens to 6 low-income communities and communities of 7 color.’’. 8 SEC. 4. NOTICE TO LANDOWNERS. 9 (a) INITIAL NOTICE TO AFFECTED LANDOWNERS.— 10 Section 7(d) of the Natural Gas Act (15 U.S.C. 717f(d)) 11 is amended— 12 (1) by striking ‘‘(d) Application for certificates’’ 13 and inserting the following: 14 ‘‘(d) APPLICATIONS.— 15 ‘‘(1) IN GENERAL.—An application for a certifi- 16 cate of public convenience and necessity under this 17 section’’; and 18 (2) by adding at the end the following: 19 ‘‘(2) REQUIREMENTS FOR NOTICE.— 20 ‘‘(A) IN GENERAL.—Before serving a no- 21 tice described in paragraph (1), the applicant 22 shall submit the notice to the Commission for 23 review and approval. 24 VerDate Sep 11 2014 19:34 Apr 04, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S641.IS S641 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 641 IS ‘‘(B) APPROVAL.—The Commission shall 1 only approve a notice under subparagraph (A) 2 if the notice satisfies all applicable requirements 3 of this section. 4 ‘‘(C) INSTRUCTIONS FOR MOTIONS TO IN- 5 TERVENE.—A notice described in paragraph (1) 6 shall include complete instructions regarding 7 the method by which a notice recipient can 8 move to intervene, through electronic or paper 9 filing, in the application process, including— 10 ‘‘(i) a clear statement of the required 11 contents of such a motion to intervene; 12 ‘‘(ii) a separate, bolded section in- 13 forming notice recipients that the notice 14 recipients must intervene in the application 15 process to preserve the right to judicial re- 16 view; and 17 ‘‘(iii) the deadline for moving to inter- 18 vene, which shall be not later than the date 19 that is 60 days after the date on which the 20 notice recipient is confirmed to have re- 21 ceived the notice. 22 ‘‘(D) REQUIREMENT.—The applicant shall 23 submit to the Commission, together with the 24 notice under subparagraph (A), a list of all per- 25 VerDate Sep 11 2014 19:34 Apr 04, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S641.IS S641 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 641 IS sons to whom the applicant is required to serve 1 the notice, including— 2 ‘‘(i) the address of each such person; 3 and 4 ‘‘(ii) after receipt of the notice by 5 each such person, confirmation of receipt 6 of the notice. 7 ‘‘(E) DISCLOSURE.—On request by any 8 person, not later than 15 days after the date of 9 receipt of the request, the Commission shall dis- 10 close to that person the list submitted under 11 subparagraph (D).’’. 12 (b) SUBSEQUENT NOTICE TO AFFECTED LAND- 13 OWNERS.—Section 7(e) of the Natural Gas Act (15 U.S.C. 14 717f(e)) (as amended by section 3) is amended by adding 15 at the end the following: 16 ‘‘(4) REHEARING NOTICE REQUIREMENT.— 17 ‘‘(A) IN GENERAL.—Not later than 15 18 days after the date on which a certificate of 19 public convenience and necessity is issued under 20 paragraph (1), the holder of the certificate of 21 public convenience and necessity shall serve to 22 all persons that received notice under sub- 23 section (d) an actual notice of the decision of 24 VerDate Sep 11 2014 19:34 Apr 04, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S641.IS S641 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 641 IS the Commission to issue the certificate of public 1 convenience and necessity. 2 ‘‘(B) CONTENTS.—A notice under sub- 3 paragraph (A) shall include complete instruc- 4 tions regarding the method by which a notice 5 recipient can petition for a rehearing of the de- 6 cision of the Commission to issue the certificate 7 of public convenience and necessity, including— 8 ‘‘(i) the required contents of a petition 9 for rehearing; 10 ‘‘(ii) a separate, bolded section in- 11 forming notice recipients that the notice 12 recipients must petition for a rehearing on 13 an issue covered by the certificate to pre- 14 serve the right to judicial review on that 15 issue; and 16 ‘‘(iii) information regarding the re- 17 quirements for rehearing and judicial re- 18 view under subsections (a) and (b) of sec- 19 tion 19 that apply to the petition for re- 20 hearing, including a specific reference to 21 any relevant deadlines applicable to the pe- 22 tition.’’. 23 VerDate Sep 11 2014 19:34 Apr 04, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S641.IS S641 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 641 IS SEC. 5. REQUIREMENTS FOR EXERCISE OF EMINENT DO- 1 MAIN. 2 (a) IN GENERAL.—Section 7(h) of the Natural Gas 3 Act (15 U.S.C. 717f(h)) is amended— 4 (1) in the second sentence— 5 (A) by striking ‘‘where the property is situ- 6 ated: Provided, That the’’ and inserting ‘‘in 7 which the property is situated, subject to the 8 condition that the’’; and 9 (B) by striking ‘‘The practice’’ and insert- 10 ing the following: 11 ‘‘(2) PRACTICE AND PROCEDURE.—The prac- 12 tice’’; 13 (2) by striking ‘‘(h) When any holder’’ and in- 14 serting the following: 15 ‘‘(h) EMINENT DOMAIN.— 16 ‘‘(1) IN GENERAL.—Except as provided in para- 17 graph (4), in any case in which a holder’’; and 18 (3) by adding at the end the following: 19 ‘‘(3) REQUIREMENTS.— 20 ‘‘(A) IN GENERAL.—Subject to subpara- 21 graph (B), a holder of a certificate of public 22 convenience and necessity may not exercise the 23 right of eminent domain for a project under 24 this subsection until the latest of, as applica- 25 ble— 26 VerDate Sep 11 2014 19:34 Apr 04, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S641.IS S641 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 641 IS ‘‘(i) the date on which the holder has 1 received all required certifications and au- 2 thorizations for the project from any Fed- 3 eral agencies (other than the Commission) 4 or State administrative agencies acting 5 pursuant to Federal law; 6 ‘‘(ii) the date on which the applicant 7 serves each notice in accordance with sub- 8 section (e)(4); and 9 ‘‘(iii) the date on which each timely 10 motion to intervene relating to the certifi- 11 cate under subsection (d)(2)(C) has been 12 acted on by the Commission. 13 ‘‘(B) EFFECT OF VACATED OR RESCINDED 14 CERTIFICATION OR AUTHORIZATION.—If a cer- 15 tification or authorization for a project from 16 any Federal agency (other than the Commis- 17 sion) or State administrative agency acting pur- 18 suant to Federal law is rescinded or vacated— 19 ‘‘(i) the holder of a certificate of pub- 20 lic convenience and necessity for the 21 project may not exercise the right of emi- 22 nent domain for the project under this 23 subsection; and 24 VerDate Sep 11 2014 19:34 Apr 04, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S641.IS S641 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 641 IS ‘‘(ii) if land has already been acquired 1 by the exercise of the right of eminent do- 2 main under this subsection, construction of 3 the project on that land shall be prohib- 4 ited.’’. 5 (b) LIMITATION ON USE OF EMINENT DOMAIN FOR 6 EXPORTS.—Section 7(h) of the Natural Gas Act (15 7 U.S.C. 717f(h)) (as amended by subsection (a)) is amend- 8 ed by adding at the end the following: 9 ‘‘(4) LIMITATION ON USE OF EMINENT DOMAIN 10 FOR EXPORTS.—A holder of a certificate of public 11 convenience and necessity may not exercise the right 12 of eminent domain under this subsection if the 13 project covered by the certificate is a project to be 14 constructed substantially for the purpose of trans- 15 porting natural gas to an LNG terminal for export 16 from the United States to a foreign country.’’. 17 SEC. 6. REQUIREMENT TO EXECUTE PROJECT ONLY FOR 18 CERTAIN PURPOSES. 19 Section 7 of the Natural Gas Act (15 U.S.C. 717f) 20 is amended by adding at the end the following: 21 ‘‘(i) REQUIREMENT TO EXECUTE PROJECT ONLY 22 FOR CERTAIN PURPOSES.—The holder of a certificate of 23 public convenience and necessity shall execute the project 24 VerDate Sep 11 2014 19:34 Apr 04, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S641.IS S641 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 641 IS covered by the certificate only for the purposes that 1 were— 2 ‘‘(1) expressly described in the application for 3 the certificate; and 4 ‘‘(2) communicated to— 5 ‘‘(A) the Commission; 6 ‘‘(B) the persons that received a notice of 7 the application for the certificate under sub- 8 section (d); and 9 ‘‘(C) the public.’’. 10 SEC. 7. CONDITIONS UNDER WHICH CERTIFICATE OF PUB- 11 LIC CONVENIENCE AND NECESSITY MAY BE 12 RESCINDED. 13 Section 7 of the Natural Gas Act (15 U.S.C. 717f) 14 (as amended by section 6) is amended by adding at the 15 end the following: 16 ‘‘(j) CONDITIONS UNDER WHICH CERTIFICATE MAY 17 BE RESCINDED.— 18 ‘‘(1) IN GENERAL.—A certificate of public con- 19 venience and necessity shall be rescinded on a deter- 20 mination by the Commission, or on a determination 21 after a rehearing, that— 22 ‘‘(A) the scope of the project covered by 23 the certificate has changed materially; 24 VerDate Sep 11 2014 19:34 Apr 04, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S641.IS S641 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 641 IS ‘‘(B) the rationale of public convenience 1 and necessity by which the Commission issued 2 the certificate has changed; or 3 ‘‘(C) the applicant has failed to begin sub- 4 stantial construction on the project covered by 5 the certificate, such that the observed delay is 6 not consistent with a prior finding of public 7 convenience and necessity. 8 ‘‘(2) FAILURE TO INITIATE SUBSTANTIAL CON- 9 STRUCTION.—If the holder of a certificate of public 10 convenience and necessity fails to initiate substantial 11 construction of the project covered by the certificate 12 by the date specified by the certificate, the certifi- 13 cate shall be rescinded on that date. 14 ‘‘(3) REAPPLICATION.—The holder of a certifi- 15 cate of public convenience and necessity rescinded 16 under paragraph (1) or (2) may reapply for the cer- 17 tificate in accordance with the applicable require- 18 ments of this Act. 19 ‘‘(4) REQUIREMENT.—Any certificate of public 20 convenience and necessity that is issued by the Com- 21 mission shall include the condition that title in and 22 to any property that was acquired under subsection 23 (h)(1) by the exercise of the right of eminent domain 24 pursuant to a certificate of public convenience and 25 VerDate Sep 11 2014 19:34 Apr 04, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S641.IS S641 pbinns on DSKJLVW7X2PROD with BILLS 13 •S 641 IS necessity that was rescinded under paragraph (1) or 1 (2) shall immediately revert to the prior property 2 owner.’’. 3 SEC. 8. REQUIREMENTS FOR ACQUISITION OF PROPERTY. 4 Section 7 of the Natural Gas Act (15 U.S.C. 7 [Text truncated for display. Full text available on Congress.gov.]