Adorers of the Blood of Christ v. Fed. Energy Regulatory Comm'n

• Decision Date: 25 July 2018
• Docket Number: No. 17-3163,17-3163
• Parties: ADORERS OF THE BLOOD OF CHRIST, United States Province, n/k/a Adorers of the Blood of Christ, United States Region, Successor By Merger To Adorers the Blood of Christ, Province of Columbia, PA, Inc., formerly known as Saint Joseph’s Convent, Mother House of Sister Adorers of the Most Precious Blood, Columbia, PA also known as Sisters Adorers of the Most Precious Blood, St. Joseph Convent, Columbia, PA formerly known as Saint Joseph Convent Motherhouse of the Adorers of the Blood of Christ, Columbia, Pennsylvania, Inc.; Sister Dani Brought; Sister Mary Alan Wurth; Sister Sara Dwyer; Sister Maria Hughes; Sister Therese Marie Smith, Appellants v. FEDERAL ENERGY REGULATORY COMMISSION; Commissioner of the Federal Energy Regulatory Commission; Transcontinental Gas Pipe Line Company, LLC, c/o CT Corporation System
• Court: U.S. Court of Appeals — Third Circuit

897 F.3d 187

ADORERS OF THE BLOOD OF CHRIST, United States Province, n/k/a Adorers of the Blood of Christ, United States Region, Successor By Merger To Adorers the Blood of Christ, Province of Columbia, PA, Inc., formerly known as Saint Joseph’s Convent, Mother House of Sister Adorers of the Most Precious Blood, Columbia, PA also known as Sisters Adorers of the Most Precious Blood, St. Joseph Convent, Columbia, PA formerly known as Saint Joseph Convent Motherhouse of the Adorers of the Blood of Christ, Columbia, Pennsylvania, Inc.; Sister Dani Brought; Sister Mary Alan Wurth; Sister Sara Dwyer; Sister Maria Hughes; Sister Therese Marie Smith, Appellants

v.FEDERAL ENERGY REGULATORY COMMISSION; Commissioner of the Federal Energy Regulatory Commission; Transcontinental Gas Pipe Line Company, LLC, c/o CT Corporation System

No. 17-3163

United States Court of Appeals, Third Circuit.

Argued January 19, 2018

Opinion Filed: July 25, 2018

J. Dwight Yoder, Esq. [Argued], Gibbel, Kraybill & Hess, 2933 Lititz Pike, P.O. Box 5349, Lancaster, PA 17606, Counsel for Appellants.

Susanna Y. Chu, Esq. [Argued], Robert H. Solomon, Esq., Federal Energy Regulatory Commission, 888 1st Street, N.E., Washington, DC 20426, Counsel for Appellees Federal Energy Regulatory Commission and Commissioner Federal Energy Regulatory Commission.

Elizabeth U. Witmer, Esq. [Argued], Saul Ewing Arnstein & Lehr, 1200 Liberty Ridge Drive, Suite 200, Wayne, PA 19087, Patrick F. Nugent, Esq., Sean T. O’Neill, Esq., John F. Stoviak, Esq., Saul Ewing Arnstein & Lehr, 1500 Market Street, Centre Square West, 38th Floor, Philadelphia, PA 19102, Counsel for Appellee Transcontinental Gas Pipe Line Company, LLC.

Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges

OPINION

GREENAWAY, JR., Circuit Judge.

Under the Natural Gas Act ("NGA"), 15 U.S.C. §§ 717 – 717z, the Federal Energy Regulatory Commission ("FERC") has the power to issue "certificates of public convenience and necessity" authorizing private developers to construct, operate, and maintain interstate natural gas pipeline projects. See 15 U.S.C. § 717f(c). But before FERC may grant such a certificate, it must, in most circumstances, set the matter for a hearing and provide reasonable notice to interested parties. Id. § 717f(c)(1)(B). If FERC ultimately issues the certificate following the requisite hearing, any aggrieved person may seek judicial review of its decision—either in the Court of Appeals for the District of Columbia Circuit or the circuit wherein the natural gas company is located or has its principal place of business. Id. § 717r(b). The statute provides that the chosen court of appeals then has "exclusive" jurisdiction "to affirm, modify, or set aside" FERC’s order. Id. § 717r(b), (d)(1). Prior to seeking review in the relevant court of appeals, however, the aggrieved party must, within thirty days of the issuance of the certificate, apply for rehearing before FERC. Id. § 717r(a). Anyone who fails to first seek rehearing before FERC is statutorily barred from later seeking judicial review. See id.

In this case, the Appellants are the Adorers of the Blood of Christ (the "Adorers"), a vowed religious order of Roman Catholic women that owns a parcel of land in Columbia, Pennsylvania affected by FERC’s decision to issue a certificate of public convenience and necessity to Transcontinental Gas Pipe Line Company, LLC ("Transco"), authorizing the company to construct a roughly two-hundred-mile-long pipeline ("Pipeline Project" or "Project"). The Adorers object to the use of their land as part of the Project, explaining that their deeply-held religious beliefs require that they care for the land in a manner that protects and preserves the Earth as God’s creation. But despite receiving notice of the proposed project, the Adorers never raised this objection before FERC. Instead, over five months after FERC granted Transco the certificate, the Adorers filed suit in the District Court for the Eastern District of Pennsylvania, raising a claim under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-1. The District Court promptly dismissed the Adorers’ complaint, concluding that it lacked subject matter jurisdiction in light of the NGA’s specific provisions addressing judicial review of FERC orders.

On appeal, the Adorers contend that the District Court erred because their RFRA claim raises a federal question, over which the court had jurisdiction pursuant to 28 U.S.C. § 1331. We disagree, and hold that a RFRA cause of action, brought by invoking a court’s general federal question jurisdiction, does not abrogate or provide an exception to a specific and exclusive jurisdictional provision prescribing a particular procedure for judicial review of an agency’s action. Accordingly, we will affirm the order of the District Court.

I¹

A

The Pipeline Project proposed by Transco consists of 199.5 miles of new pipeline in Pennsylvania connecting to existing pipelines running to South Carolina. The Pipeline Project is marketed as potentially supplying more than seven million American homes with enough natural gas to meet their daily needs by connecting natural gas producing Pennsylvania regions to markets in the mid-Atlantic and southeastern states.

The Pipeline Project consists of many subsections, including "Central Penn Line South," a proposed 127.3-mile section of the Project that will run from Lancaster County, Pennsylvania to Columbia, Pennsylvania, with a forty-two-inch diameter capable of transporting 1.7 dekatherms (billion cubic feet) of natural gas per day, and a maximum operating pressure of 1,480 pounds per square inch. The subsection would facilitate the extraction, harnessing, transportation, and use of natural gas. The Pipeline Project would run through the Adorers’ property in Columbia, Pennsylvania.

B

On July 29, 2014, FERC published a Notice of Intent to Prepare an Environmental Impact Statement for the Planned Atlantic Sunrise Expansion, Request for Comments on Environmental Issues, and Notice of Public Scoping Meetings ("NOI") in the Federal Register , see 79 Fed. Reg. 44,023 (2014), and mailed it to nearly 2,500 interested parties, including affected property owners, to provide notice of the proposed Pipeline Project. The NOI provided a synopsis of the Pipeline Project and a preliminary list of issues identified by FERC’s staff. It also described the environmental review process, invited written comments on issues that should be addressed, listed the date and location of four public meetings to be held in the area surrounding the Project, and provided a deadline of August 18, 2014, for all comments.

According to FERC, it received over six hundred written comments from various interested parties, and ninety-three speakers provided comments at the scoping meetings held between August 4 and 7, 2014. The Adorers did not provide a written comment or attend any one of these meetings.

Transco filed its project application with FERC for a certificate of public convenience and necessity for the Pipeline Project on March 31, 2015. On October 22, 2015, FERC mailed letters to landowners potentially affected by the proposed Pipeline Project. The letter briefly described proposed project reroutes under consideration, invited newly affected landowners to participate in the environmental review process, and provided a special thirty-day limited scoping period. Among the recipients of the October 22, 2015 letter were the Adorers, who failed to respond to the letter.

The Adorers are "an ecclesial group of women living in community" and practicing their deeply-held religious convictions, App. 28, "whose religious practice includes protecting and preserving creation, which they believe is a revelation of God," App. 24. They believe that "God calls humans to treasure land as a gift of beauty and sustenance that should not be used in an excessive or harmful way." App. 24. Part of their practice is to "protect, preserve and treasure the land that [they] own." App. 24.

The Adorers own the parcel of land in Columbia, Pennsylvania that is at issue here. The land has been used to sponsor the St. Anne’s Retirement Community, and for growing crops by local farmers. The Adorers assert that their intentional decision on how to use the land "is an integral part of exercising their well-established and deeply-held religious beliefs as active and engaged stewards of God’s earth." App. 32.

In 2015, the Adorers followed an encyclical² letter titled "Laudato Si ’ of the Holy Father Francis on Care for our Common Home," written by Pope Francis. In the letter, Pope Francis provides a comprehensive theological basis that, as an act of religious belief and practice, members of the Roman Catholic Church must preserve the Earth as God’s creation. Specifically, Pope Francis identifies that climate change based, among other things, "on the great concentration of greenhouse gases related mainly as a result of human activity" and "aggravated by a model of development based on the intensive use of fossil fuels ... is a global problem." Pope Francis, Laudato Si ’ of the Holy Father Francis on Care for our Common Home 18–19, 20–21 (2015). Accordingly, the letter makes a calling "to devise larger strategies to halt environmental degradation and to encourage a ‘culture of care’ which permeates all of society." Id. at 166–67.

On May 5, 2016, FERC issued a draft Environmental Impact Statement ("EIS") addressing the issues raised during the scoping period and up to its publication. Notice of the draft EIS was published in the Federal Register on May 12, 2016, and mailed to the affected parties, several environmental entities, as well as to additional affected parties that were added after the issuance of the NOI. FERC then held four public comment meetings between June 13 and June 16, 2016, where approximately 203 speakers provided comments regarding the draft EIS. FERC also received over 560 written comments from affected parties...