Transcontinental Gas Pipe Line Company, LLC v. Permanent Easements for 2.14 Acres and Temporary Easements for 3.59 Acres In Conestoga Township, 103018 FED3, 17-3075

Docket Nº:17-3075, 17-3076, 17-3115, 17-3116
Opinion Judge:ROTH, Circuit Judge
Party Name:TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC v. PERMANENT EASEMENTS FOR 2.14 ACRES AND TEMPORARY EASEMENTS FOR 3.59 ACRES IN CONESTOGA TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA, TAX PARCEL NUMBER 1201606900000; HILLTOP HOLLOW LIMITED PARTNERSHIP; HILLTOP HOLLOW PARTNERSHIP LLC GENERAL PARTNER OF HILLTOP HOLLOW LIMITED PARTNERSHIP; LANCASTER FARML...
Attorney:Siobhan K. Cole, Jeremy P. Hopkins, Michael N. Onufrak, Carolyn Elefant, Mark L. Freed Counsel for Appellants. Patrick F. Nugent, Sean T. O'Neill, Elizabeth U. Witmer Counsel for Appellees.
Judge Panel:Before: SHWARTZ, ROTH and FISHER, Circuit Judges
Case Date:October 30, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC

v.

PERMANENT EASEMENTS FOR 2.14 ACRES AND TEMPORARY EASEMENTS FOR 3.59 ACRES IN CONESTOGA TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA, TAX PARCEL NUMBER 1201606900000; HILLTOP HOLLOW LIMITED PARTNERSHIP; HILLTOP HOLLOW PARTNERSHIP LLC GENERAL PARTNER OF HILLTOP HOLLOW LIMITED PARTNERSHIP; LANCASTER FARMLAND TRUST; ALL UNKNOWN OWNERS Hilltop Hollow Limited Partnership and Hilltop Hollow Partnership, LLC, Appellants

TRANSCONTINENTAL GAS PIPELINE COMPANY, LLC

v.

PERMANENT EASEMENT FOR 2.02 ACRES AND TEMPORARY EASEMENTS FOR 2.76 ACRES IN MANOR TOWNSHIP, LANCASTER COUNTY PENNSYLVANIA, TAX PARCEL NUMBER 4100300500000, 3049 SAFE HARBOR ROAD, MANOR TOWNSHIP, LANCASTER, PA; STEPHEN D. HOFFMAN; AND ALL UNKNOWN OWNERS Stephen D. Hoffman, Appellant

TRANSCONTINENTAL GAS PIPELINE COMPANY, LLC

v.

PERMANENT EASEMENT FOR 1.33 ACRES AND TEMPORARY EASEMENTS FOR 2.28 ACRES CONESTOGA TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA TAX PARCEL NUMBER 1202476100000, 4160 MAIN STREET CONESTOGA, PA 17516; LYNDA LIKE, also known as Linda Like, AND ALL UNKNOWN DEFENDANTS Lynda Like, Appellant

TRANSCONTINENTAL GAS PIPELINE COMPANY, LLC

v.

PERMANENT EASEMENT FOR 0.94 ACRES AND TEMPORARY EASEMENTS FOR 1.61 ACRES IN CONESTOGA TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA, TAX PARCEL NUMBER 1203589400000, SICKMAN MILL ROAD; BLAIR B. MOHN; MEGAN E. MOHN, AND ALL UNKNOWN OWNERS Blair B. Mohn and Megan E. Mohn, Appellants

Nos. 17-3075, 17-3076, 17-3115, 17-3116

United States Court of Appeals, Third Circuit

October 30, 2018

Submitted under Third Circuit LAR 34.1(a) on October 2, 2018

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D. C. Civil Actions Nos. 17-cv-00715, 17-cv-00723, 17-cv-00720, 17-cv-00722) District Judge: Honorable Jeffery L. Schmehl.

Siobhan K. Cole, Jeremy P. Hopkins, Michael N. Onufrak, Carolyn Elefant, Mark L. Freed Counsel for Appellants.

Patrick F. Nugent, Sean T. O'Neill, Elizabeth U. Witmer Counsel for Appellees.

Before: SHWARTZ, ROTH and FISHER, Circuit Judges

OPINION

ROTH, Circuit Judge

Congress may grant eminent domain power to private companies acting in the public interest. This appeal requires us to determine the limits on Congress's grant of eminent domain power to private companies building gas lines under the Natural Gas Act (NGA), 15 U.S.C. § 717f(h).

The NGA gives natural gas companies the power to acquire property by eminent domain, but it provides only for standard eminent domain power, not the type of eminent domain called "quick take" that permits immediate possession.1 The District Court granted a preliminary injunction to Transcontinental Gas Pipe Line Company, which effectively gave the company immediate possession of certain rights of way owned by appellant landowners. The landowners claim that granting immediate possession violated the constitutional principle of separation of powers because the taking of property by eminent domain is a legislative power and the NGA did not grant "quick take." We disagree and hold that the District Court's order did not violate the principle of separation of powers because Transcontinental properly sought and obtained the substantive right to the property before seeking equitable relief. We will therefore affirm.

I

Transcontinental is building a natural gas pipeline that runs through Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina. For this project, named "Atlantic Sunrise Expansion Project," Transcontinental needed certain rights of way, including those owned by appellants Hilltop Hollow Limited Partnership, Stephen Hoffman, Lynda Like, and Blair and Megan Mohn (collectively "Landowners"). Under § 717f(h) of the NGA, gas companies may acquire property by eminent domain if they meet three requirements. A gas company must demonstrate, first, that it holds a certificate of public convenience and necessity from the Federal Energy Regulatory Commission (FERC); second, that it was unable to acquire the right of way through negotiation with the landowner; and third, that the amount claimed by the owner of the property exceeds $3, 000. If these conditions are met, the gas company may "acquire the [necessary right-of-way] by the exercise of the right of eminent domain in the district court."2

Transcontinental has met all three requirements of § 717f(h). The administrative review leading up to the certificate of public convenience and necessity lasted almost three years and, as is evident from the record, included extensive outreach and many avenues of public participation. The process started when FERC granted the company's request to use the pre-filing process on April 4, 2014.3 On July 29, 2014, FERC issued a Notice of Intent to Prepare an Environmental Impact Statement (EIS) for the Planned Atlantic Sunrise Expansion Project, Request for Comments on Environmental Issues, and Notice of Public Scoping Meetings (NOI).[4] The NOI was then mailed to 2500 interested parties. It invited comment on the project's environmental issues from all levels of government, interest groups, Native American tribes, affected property owners, local media and libraries, and other interested parties. The Commission heard from 93 speakers and received over 600 written comments.5 On March 31, 2015, the company filed its application to construct and operate the Atlantic Sunrise project.6 FERC mailed letters to potentially affected landowners (as well as to government officials and other stakeholders) on October 22, 2015.[7] FERC issued the draft EIS on May 5, 2016, and published it on May 12, 2016.8 At four public meetings in June 2016, FERC heard from 203 speakers and received over 560 written comments and 900 identical letters on the draft EIS.9 Two alternative pipeline routes were identified following the draft EIS, and additional notices were mailed to potentially affected stakeholders, in response to which FERC received 25 additional comment letters.10 FERC issued the final EIS on December 30, 2016, and published it on January 9, 2017.11

The Commission issued a certificate of public convenience and necessity to Transcontinental-the first requirement of § 717f(h) of the NGA-on February 3, 2017.[12] It found "[b]ased on the benefits" of the pipeline, "the minimal adverse effects on landowners or surrounding communities," and "the absence of adverse effects on existing customers and other pipelines and their captive customers, . . . that the public convenience and necessity require[d] approval" of the project "subject to the conditions" set out in the Order Issuing Certificate.13 Those conditions included requirements that Transcontinental, inter alia, construct the pipeline and make it available for service within three years of the date of the order, 14 comply with certain environmental conditions, and follow certain rate schedules.15 FERC also required that Transcontinental execute firm contracts for volumes and service terms "equivalent to those in its precedent agreements" before construction.16 The Order Issuing Certificate contained information on those binding precedent agreements, comprising 100% of the capacity generated by the project, with nine shippers.17 The Landowners sought rehearing and included a request to stay the Order Issuing Certificate and construction of the project, 18 but FERC tolled the rehearing request on March 13, 2017, 19denied the stay requests on August 31, 2017, 20 and finally denied the rehearing request on December 6, 2017.21

The second and third requirements for using the eminent domain powers under § 717f(h) of the NGA are that the gas company negotiate with the landowner for the necessary right of way and that value of the right of way exceeds $3000. Transcontinental extended written offers of compensation exceeding $3000 to each of the Landowners, but these offers were not accepted.22 Transcontinental thus satisfied the second and third requirements. The company filed condemnation complaints pursuant to Rule 71.1 in four separate actions against the Landowners on February 15, 2017.[23]

Having met the three requirements of § 717f(h), Transcontinental moved for partial summary judgment on February 20, 2017, in the Hilltop, Hoffman, and Mohn condemnation actions and on February 22, 2017, in the Like condemnation action.24 Transcontinental also requested an injunction giving immediate access for the purpose of conducting a survey in the Hilltop and Hoffman actions and claimed immediate entitlement based on the existence of the FERC order.25 On April 6, 2017, the District Court denied the motion for an injunction under the NGA because it had not yet determined the merits of Transcontinental's condemnation action, though it granted Transcontinental limited survey access pursuant to Pennsylvania state law.26The court held that it would have been premature to grant such an injunction at that time given that the Landowners in related cases had not yet finished briefing the summary judgment motions.27 The court noted that if Transcontinental later established its right to condemn, the court would be able to use its equitable power to award preliminary injunctive relief.28

After briefing on the summary judgment motions concluded, Transcontinental filed an omnibus motion for preliminary injunction on June 28, 2017.29 The Landowners responded on July 14, 2017.30 On June 30, 2017, the District Court scheduled oral argument on the motions for July 17 and 20, 2017. At oral argument, a witness for Transcontinental testified that construction was planned to begin in the fall of 2017 and that it would need access to the rights of way by August 18, 31 or else it would suffer various harms.32 The Landowners cross-examined Transcontinental's...

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