Tennessee Gas Pipeline v. Massachusetts Bay Trans., 97-CV-12724-MEL.

• Decision Date: 01 April 1998
• Docket Number: No. 97-CV-12577-MEL.,No. 97-CV-12724-MEL.,97-CV-12724-MEL.,97-CV-12577-MEL.
• Citation: 2 F.Supp.2d 106
• Court: U.S. District Court — District of Massachusetts
• Parties: TENNESSEE GAS PIPELINE COMPANY, Plaintiff, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, City of Revere, Massachusetts, City of Malden, Massachusetts, Boston Gas Company, New England Power Company, Massachusetts Electric Company, Boston & Maine Railroad, and approximately six acres of permanent easement and thirty acres of temporary work space over the Saugus Branch of the Boston and Maine Corporation Railroad, Defendants. TENNESSEE GAS PIPELINE COMPANY, Plaintiff, v. CITY OF MALDEN, MASSACHUSETTS, and Approximately 0.03 Acres of Permanent Easement and 0.05 Acres of Temporary Work Space Over Land in the City of Malden, Defendants.

2 F.Supp.2d 106

TENNESSEE GAS PIPELINE COMPANY, Plaintiff, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, City of Revere, Massachusetts, City of Malden, Massachusetts, Boston Gas Company, New England Power Company, Massachusetts Electric Company, Boston & Maine Railroad, and approximately six acres of permanent easement and thirty acres of temporary work space over the Saugus Branch of the Boston and Maine Corporation Railroad, Defendants.

TENNESSEE GAS PIPELINE COMPANY, Plaintiff, v. CITY OF MALDEN, MASSACHUSETTS, and Approximately 0.03 Acres of Permanent Easement and 0.05 Acres of Temporary Work Space Over Land in the City of Malden, Defendants.

No. 97-CV-12724-MEL.

No. 97-CV-12577-MEL.

United States District Court, D. Massachusetts.

April 1, 1998.

Paul E. Troy, Sherburne, Powers & Needham, Boston, MA, for Tennessee Gas Pipeline Co.

John S. Leonard, Menard, Murphy & Walsh, Boston, MA, for Massachusetts Bay Transportation Authority, defendant.

Stephen G. Doucette, NE Power Research Service Co., Westborough, MA, for New England Power Co. Massachusetts Electric Co. and Department of Metropolitan Dist. Com'n.

Richard Goldstein, Charlestown Navy Yard, Boston, MA, for Massachusetts Water Resources Authority.

Neal C. Tully, Masterman, Culbert & Tully, Boston, MA, for Boston & Maine Railroad.

MEMORANDUM AND ORDER

LASKER, District Judge.

On June 25, 1997, the Federal Energy Regulatory Commission ("FERC" or "the Commission") issued, pursuant to the Natural Gas Act, 15 U.S.C. § 717 et seq., a Certificate of Public Convenience and Necessity (the "Certificate") to Tennessee Gas Pipeline Company. Tennessee is a company engaged primarily in the business of transporting, via pipeline, natural gas and its by products The Certificate authorizes Tennessee to construct, install, operate, and maintain a 7.54 mile extension of its existing pipeline in the Town of Saugus, to an existing natural gas terminal in the city of Everett.¹ On December 24, 1997, FERC issued an order denying various requests for rehearing and a stay of the Certificate. It also specified that Tennessee "shall complete construction and place in service the facilities authorized [in the Certificate] within one year of the date of issuance of th[e] order."

The pipeline extension is planned to run generally along what is known as the "Saugus Branch" of the Boston & Maine Corporation Railroad, through the cities of Revere, Malden and Everett. The Saugus Branch is owned by the Massachusetts Bay Transit Authority ("MBTA"). The planned route also traverses property owned by the City of Malden and used as a parking lot, "conservation" property owned by the Town of Saugus, and a railway right-of-way owned by Consolidated Railroad ("Conrail"). Because Tennessee was unable to reach respective agreements with each of these property owners, it sued—in four cases deemed "related"—for judgments of taking by eminent domain. It further sued for injunctions prohibiting the property owners and other interested parties² from interfering with Tennessee's exercise of the authority it was granted by FERC. Tennessee now moves for summary judgment declaring its right to take by eminent domain the MBTA and Malden properties, and to enjoin interference by the defendants in the MBTA and Malden cases.³

Tennessee's Motions for Summary Judgment

Tennessee argues that it is authorized to take the MBTA and Malden properties pursuant to Section 7(h) of the Natural Gas Act ("NGA"), 15 U.S.C. § 717f(h). Section 7(h) grants the right of eminent domain to an entity meeting the statutory definition of "natural gas company"⁴ where: (1) the company holds a FERC Certificate authorizing a particular pipeline project, (2) the use of the land to be taken is necessary to the project, and (3) the company and the relevant property owners have failed to agree on a price for the property. Specifically, the statute provides:

When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way ..., it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located, or in the State Courts.

15 U.S.C. § 717f(h). There is no dispute that these conditions have been satisfied.

The defendants oppose, however, on one or more of the following grounds: (1) the FERC Certificate held by Tennessee is not final and binding, and, in the case of Boston and Maine Railroad ("B & M"), even if it is final, it is not binding on Boston and Maine in light of that entity's not having been provided individual notice of the FERC proceedings; (2) Tennessee has failed to implement reasonable safety precautions; (3) the DOMAC project may interfere with the defendant owners' and defendant easement holders' respective property rights and interests, which in turn would be a public hardship because those rights involve public utilities and services; (4) there is no true public need for a greater supply of natural gas; and (5) Massachusetts law prohibits the taking. None of the defense arguments has merit.

With respect to the first argument, Tennessee's FERC Certificate is indeed final and binding. The NGA itself directs that an order by FERC not be stayed unless either FERC itself—in the context of a rehearing— or the reviewing Court of Appeals specifically orders a stay. See 15 U.S.C. § 717r(c).⁵ See also Ecee, Inc. v. Federal Power Comm'n, 526 F.2d 1270, 1274 (5th Cir.) (order is final "unless and until it is stayed, modified, or reversed"), cert. denied, 429 U.S. 867, 97 S.Ct. 176, 50 L.Ed.2d 147 (1976); State of Louisiana v. Federal Power Comm'n, 483 F.2d 972 (5th Cir.1973) (neither application for rehearing, nor the institution of review in the Court of Appeals operates to stay a FERC order "unless such a stay is specifically ordered by the Commission or Court"); Jupiter Corp. v. Federal Power Comm'n, 424 F.2d 783, 791 (D.C.Cir.1969) (orders effective during disposition of review proceedings), cert. denied, 397 U.S. 937, 90 S.Ct. 944, 25 L.Ed.2d 118 (1970).

The related claim of lack of individualized notice asserted by B & M—which is taken to charge that the Certificate is therefore not binding as to property in which the railroad has an interest—also fails. The claim is, in essence, a collateral attack on the validity of the Certificate. As explained more fully below, such a challenge is impermissible. See Tennessee Gas Pipeline Co. v. 104 Acres of Land, More or Less, 749 F.Supp. 427, 430 (D.R.I.1990) (certificate cannot be collaterally attacked in eminent domain proceeding). Moreover, even if this Court had the authority to consider a lack of notice claim, the law does not require that B & M have been given individual notice. FERC regulations state only that the applicant for a certificate must provide the Commission a form of notice suitable for publication in the Federal Register, and that FERC will then publish the notice in the Register. See 18 C.F.R. §§ 157.6(b)(7), 157.9. There is no dispute that Tennessee provided FERC a form of notice satisfying the regulations, and that FERC indeed published it. B & M has cited no authority for the proposition that such a notice procedure provides less than that required by statute or the Constitution. See 104 Acres of Land, 749 F.Supp. at 430-31 (noting the "line of decisions holding that landowners have no due process right to notice and a hearing in agency proceedings to determine the need for condemnation").

Nor do defendants' safety and interference arguments save the day. As an initial point, no defendant has brought to the debate any evidentiary support for the claims of potential danger or interference. Moreover, even if defendants were to proffer sufficient detail to raise questions about the advisability or fairness of FERC's actions related to safety and the potential impairment of others' property rights, this Court would have no authority to amend or qualify the Commission's order. This Court's role is one of mere enforcement. Williams Natural Gas Co. v. City of Oklahoma City, 890 F.2d 255, 264 (10th Cir.1989), cert. denied, 497 U.S. 1003, 110 S.Ct. 3236, 111 L.Ed.2d 747 (1990); Kern River Gas Transmission Co. v. Clark County, 757 F.Supp. 1110, 1116 (D.Nev.1990). The District Court's sole charge and authority is to evaluate the scope of the FERC Certificate, and order the condemnation of property in accordance with that scope. 104 Acres of Land, 749 F.Supp. at 430.

Under the statutory framework, there is no appeal of a FERC decision save to the appropriate Court of Appeals. Disputes as to the propriety of FERC's proceedings, findings, orders, or reasoning, must be brought to FERC by way of request for rehearing. 15 U.S.C. § 717r(a); 104 Acres of Land, 749 F.Supp. at 430. Appeals may thereafter be brought before a U.S. Court of Appeals only. 15 U.S.C. § 717r(b); Williams, 890 F.2d at 262 (judicial review exclusive in the Courts of Appeals).

Moreover, collateral attack of a FERC certificate in the District Court is impermissible. In Williams, the Tenth Circuit held that the district courts' authority under the NGA—to authorize the FERC certificate holder to condemn property—"does not provide challengers with an additional forum to attack the substance and validity of a FERC order." Id. at 264; 104 Acres of Land, 749 F.Supp. at 430 (certificate may not be challenged in eminent domain proceeding; landowner's only recourse is request for rehearing or appeal of FERC order). See also City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 335-340, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958) (power project license granted by FERC's predecessor may not be collaterally...