Tennessee Gas Pipeline v. 104 Acres in Prov. Cty.

• Decision Date: 29 October 1990
• Docket Number: Civ. A. No. 89-700B et seq.
• Citation: 749 F. Supp. 427
• Parties: TENNESSEE GAS PIPELINE CO. v. 104 ACRES OF LAND MORE OR LESS, IN PROVIDENCE COUNTY OF the STATE OF RHODE ISLAND, Perry L. Olson et als., and Unknown Owners.
• Court: U.S. District Court — District of Rhode Island

749 F. Supp. 427

TENNESSEE GAS PIPELINE CO. v. 104 ACRES OF LAND MORE OR LESS, IN PROVIDENCE COUNTY OF the STATE OF RHODE ISLAND, Perry L. Olson et als., and Unknown Owners.

Civ. A. No. 89-700B et seq.

United States District Court, D. Rhode Island.

October 29, 1990.

COPYRIGHT MATERIAL OMITTED

Fran R. Robins-Liben, Tillinghast, Collins & Graham, Providence, R.I., for plaintiff.

Michael Rubin, Asst. Atty. Gen., S. Michael Levin, Robert D. Fine, Richard C. Tallo, Barry J. Kusinitz, Anthony F. Muri, Laurel K. Bristow, Jay M. Elias, Domenic Tudino, Richard A. Licht, Joseph LoBianco, David Schechter, Joel D. Landry, Robert E. Davignon, Carl B. Lisa, George E. Lieberman, James M. Sloan, III, Carol E. Najarian, Richard Kelaghan, Thomas C. Plunkett, James A. Currier, Robert J. Cosentino, Thomas L. McDonald, Stephen J. Reid, Jr., Robert S. Bruzzi, Harris K. Weiner, Adler, Pollock & Sheehan, Harold I. Kessler, Friedman & Kessler, Shelia High King and Michael A. Kelly, Providence, R.I., John McBurney, Pawtucket, R.I., Vincent Piccirilli, Paul A. Sassi, Robert D. Murray, William F. Holt and Jeffrey A. Lanphear, Cranston, R.I., James V. Paolino, Robert V. Colagiovanni, David M. Campanella, Sandra A. Blanding and Dennis R. Gannon, Warwick, R.I., Thomas E. Hefner, Greenville, R.I., Paul P. Baillargeon and Robert D. Natal, No. Smithfield, R.I., Scott K. Keefer and Joseph Dugan, Woonsocket, R.I., John A. Murphy, Jamestown, R.I., Nolan & Dailey, Coventry, R.I., Everett A. Petronio, Johnston, R.I. and George Prescott, Lincoln, R.I., for defendants.

OPINION

FRANCIS J. BOYLE, Chief Judge.

On May 18, 1989, the Federal Energy Regulatory Commission (FERC or Commission) granted Tennessee Gas Pipeline Company (Tennessee Gas) a Certificate of Public Convenience and Necessity authorizing construction of a 36 mile high-pressure natural gas pipeline extension from Worcester County in Massachusetts to a southern terminus in Cranston, Rhode Island. The certificate was issued following a hearing before the Commission for which notice was given in accord with statute and FERC regulations.¹ After the certificate was issued, a rehearing was thereafter granted to some affected property owners and the certificate was amended on September 9, 1990 to alter the southern end of the route to "reduce potential land use impact." Tennessee Gas Pipeline Co., F.E.R.C. No. CP87-75-002. The Commission has yet to consider additional requests for rehearing filed by Consolidated Edison Company of New York, Inc., Tennessee Gas Pipeline Company, and Peoples Gas Light and Coke Company.

As amended, the certificate authorizes the construction of a 20-inch high-pressure natural gas pipeline from Tennessee Gas' existing line in Massachusetts to Sherman Road, just over the Massachusetts/Rhode Island state line in Burrillville, Rhode Island. From Sherman Road, the certificate permits construction of a 16-inch pipeline to Cranston, Rhode Island. Over the entire route, the certificate authorizes acquisition of temporary easements 75 feet in width for use during construction and the retention of permanent rights of way and easements that are no more than 50 feet wide. The certificate also allows acquisition of a parcel of land at the southern end of the line for a metering facility. The certificate is conditioned on Tennessee Gas' adherence to specific environmental mitigation measures before and during construction, including the obligation to obtain a permit before construction from the FERC's Office of Pipeline and Producer Regulation after review of cultural resource surveys and mitigation plans.

Tennessee Gas now asks this Court, pursuant to Section 7(h) of the Natural Gas Act, 15 U.S.C. § 717f(h), to condemn rights of way, easements and land for the construction and maintenance of the pipeline. Tennessee Gas asserts, and Defendants do not contest, that Tennessee Gas was unable after good faith negotiations to purchase the property that is the subject of this complaint. In its complaint, Tennessee Gas seeks perpetual or permanent easements and rights of way to transport "oil, gas, petroleum products or any other liquids, gases or substances which can be transported through a pipeline." In addition to the right to construct, maintain, and operate a pipeline, Tennessee Gas seeks the right to "alter ... renew, remove, change the size of and replace a pipeline."

The Defendants are various landowners whose land is the subject of this condemnation proceeding. In their challenge to Tennessee Gas' claim of eminent domain, Defendants make two basic arguments: first, that Tennessee Gas' FERC certificate is invalid and, second, that the extent of the condemnation exceeds the scope or otherwise violates the terms of the certificate.

Validity of the FERC Certificate

Defendants argue: (1) that FERC lacked authority to enter an order issuing a certificate to Tennessee Gas because the affected property owners were not afforded personal notice and an opportunity to intervene in the administrative hearings; and (2) that the FERC certificate is not "final" because the Commission has before it applications for rehearing on matters relating to the certificate. For the reasons stated below, this Court lacks jurisdiction to determine these issues.

United States District Courts have a limited scope of review in condemnation proceedings brought under Section 7(h) of the Natural Gas Act. Disputes over the reasons and procedures for issuing certificates of public convenience and necessity must be brought to the Federal Energy Regulatory Commission for rehearing. 15 U.S.C. § 717r(a). Appeals may thereafter be brought to a United States Court of Appeals. 15 U.S.C. § 717r(b). The District Court's role is to evaluate the scope of the certificate and to order condemnation of property as authorized in the certificate. See Williams Natural Gas Co. v. Oklahoma City, 890 F.2d 255, 262 (10th Cir. 1989) ("Judicial review ... is exclusive in the courts of appeals once the FERC certificate issues."), cert. denied, ___ U.S. ___, 110 S.Ct. 3236, 111 L.Ed.2d 747 (1990); Transcontinental Gas Pipe Line Corp. v. 118 Acres of Land, 745 F.Supp. 366 (E.D. La.1990) ("review of FERC orders are to be made only to United States Circuit Courts of Appeal"). District Courts, therefore, are limited to jurisdiction to order condemnation of property in accord with a facially valid certificate. Questions of the propriety or validity of the certificate must first be brought to the Commission upon an application for rehearing and the Commission's action thereafter may be reviewed by a United States Court of Appeals.

Defendants' argument that the Commission improperly denied landowners notice and a hearing on the issue of the necessity of the condemnation is a collateral attack on the validity of the certificate. The issue is, therefore, not a matter which this Court may decide. Tennessee Gas Transmission Co. v. Violet Trapping Co., 200 So.2d 428, 431 (La.Ct.App.1967) (refusing to rule on validity of certificate issued without notice).

Even if this Court could consider this issue, it is beyond doubt that Defendants' argument lacks merit. To hold that the FERC certificate is invalid because landowners were not afforded personal notice of the hearings would require the Court to overlook a long 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. See Bragg v. Weaver, 251 U.S. 57, 58, 40 S.Ct. 62, 63, 64 L.Ed. 135 (1919); Joiner v. City of Dallas, 419 U.S. 1042, 95 S.Ct. 614, 42 L.Ed.2d 637 (1974), reh'g denied, 419 U.S. 1132, 95 S.Ct. 818, 42 L.Ed.2d 831 (1975), aff'g, 380 F.Supp. 754 (N.D.Tex.1974); Bailey v. Anderson, 326 U.S. 203, 205, 66 S.Ct. 66, 67, 90 L.Ed. 3, reh'g denied, 326 U.S. 691, 66 S.Ct. 228, 90 L.Ed. 407 (1945); Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 677, 43 S.Ct. 684, 688, 67 L.Ed. 1167 (1923); United States v. 125.2 Acres of Land, 732 F.2d 239, 243 (1st Cir.1984) ("The Supreme Court has long held that takings in advance of compensation do not violate due process."). Thus, even if this Court had jurisdiction to decide the matter, which it does not, Defendants' argument would fail in light of long established law and Tennessee Gas' otherwise compliance with statutory notice requirements.

Defendants' contentions concerning the finality of the certificate are similarly without effect. Applications for rehearing by three public utility companies are presently before the Commission. However, The Natural Gas Act directs that an application for a rehearing shall not operate as a stay of the Commission's order unless specifically ordered by the Commission or by a reviewing Court of Appeals. 15 U.S.C. § 717r(c); see 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); Jupiter Corp. v. Federal Power Comm'n, 424 F.2d 783, 791 (D.C.Cir. 1969) (commission's orders effective during disposition of review proceedings), cert. denied, 397 U.S. 937, 90 S.Ct. 944, 25 L.Ed.2d 118 (1970). Rather than seeking relief from this Court, Defendants' remedy is to ask for a stay from the Commission or from the Court of Appeals. Because in this case the Commission's order has not been stayed, condemnation pursuant to that order may proceed.

Scope and Construction of the FERC Certificate

In their second basic argument, that the condemnation sought exceeds the scope or violates the terms of the FERC certificate, Defendants make five points. The defendants argue that Tennessee Gas' petition is overbroad or otherwise violates the terms of the certificate because: (1) the easements sought are perpetual, (2) the easements sought allow the size of the pipeline to be changed at a future date, (3) the easements sought specifically allow the transport of substances other...