Sabal Trail Transmission, LLC v. +/ 1.127 Acres of Land in Hamilton Cnty., Fla., Hamilton Energy Res. Opportunities, LLC

Sabal Trail argues that this case is distinguishable from the leading case of Georgia Power Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980) (en banc) (holding that state law supplied the measure of compensation where a licensee took land under the Federal Power Act, or "FPA," 16 U.S.C. § 814), because under the FPA, the Federal Energy Regulatory Commission can clear a licensee to undertake a project only if it determines that the project does not affect the development of water resources to the degree that the United States should undertake the project, 16 U.S.C. § 800. "Thus, by definition, a licensed [FPA] project does not implicate the interests of the United States to the degree that it is thought desirable that the project be undertaken by the United States itself." Georgia Power, 617 F.2d at 1118. Under the NGA, by contrast, private licensees carry out all pipeline projects. Sabal Trail interprets this difference to mean that all pipeline projects implicate the interests of the United States to a greater extent than projects undertaken by private licensees under the FPA.
A more plausible interpretation is that Congress simply did not think that any one pipeline project would be so vital to the public interest that the United States itself should carry it out. Indeed, Congress knows how to reserve critical projects for the United States, as it did under the FPA. If Congress thought some pipeline projects were so vital to the United States' interests, it could either have (a) reserved vital projects for the federal government, or (b) given NGA licensees the same condemnation powers as the United States. But Congress did neither. For example, Congress has not given pipeline companies "quick take authority," i.e., the power to take possession before paying compensation. Transwestern Pipeline Co. v. 17.19 Acres, 550 F.3d 770, 774-75 (9th Cir. 2008). Instead, a pipeline company must either pay compensation or satisfy the requirements for a preliminary injunction before taking possession. See E. Tenn. Natural Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004). The discrepancy between the eminent domain powers enjoyed by the United States and the powers enjoyed by pipeline companies suggests that Congress did not think projects undertaken by the two are of equivalent urgency.
Furthermore, when Congress passed 15 U.S.C. § 717f(h), it intended the NGA's eminent domain provision to mirror the eminent domain provision applicable to licensees under the FPA. S. Rep. No. 80-429 at 4, 1st Sess. (1947). This suggests that Congress considered NGA licensees to stand in similar shoes as FPA licensees, with the implication that NGA licensees act in the public interest only to the same extent as FPA licensees. Thus, the Court does not find Sabal Trail's efforts to distinguish the FPA and NGA in this respect to be persuasive.

The Court briefly addresses Sabal Trail's fallback argument that even if the NGA adopts Florida law as the federal rule of compensation, the Court still cannot award attorney's fees - despite being part of the measure of "full compensation" - because doing so would conflict with the American Rule. This argument is circular. It ignores that the very reason why the choice-of-law dispute arises in cases like United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979), Georgia Power, and this one is because there is some conflict between federal common law and state substantive law: if there were no difference, there would be no choice of law dispute in the first place. Anytime a court adopts state substantive law over federal common law, it raises the possibility that state law will vary from federal common law. As such, the inconsistency between Florida's measure of "full compensation" and the American Rule does not give Sabal Trail an independent ground for a favorable ruling; such conflicts are intrinsically part of applying Kimbell Foods and Georgia Power.
Sabal Trail also argues that the outcome of Georgia Power would have been different had the state's measure of compensation included attorney's fees. The Court is unconvinced. Georgia Power observed that attorney's fees might be part of the state's measure of just compensation, and it instructed the trial judge on remand to resolve "[a]ny questions concerning the exact parameters of Georgia law on this issue." 617 F.2d at 1115 n.4. The court did not say that resolution of the attorney's fee issue would influence its holding that state law supplies the applicable rule. Indeed, if there were any chance that the right to attorney's fees could have affected Georgia Power's choice-of-law analysis, it would be strange for the court to nevertheless proceed with that analysis without first resolving whether state law entitled owners to attorney's fees. The court's directive on remand implies that, having found that state law supplies the applicable rule, if the state's measure of compensation includes attorney's fees, a landowner would be entitled to such fees.