Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less

768 F.3d 300, 2014 WL 4783697
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 26, 2014
Docket13-4458, 13-4459, 13-4460, 13-4461
StatusPublished
Cited by74 cases

This text of 768 F.3d 300 (Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less, 768 F.3d 300, 2014 WL 4783697 (3d Cir. 2014).

Opinions

OPINION

RENDELL, Circuit Judge:

The issue before us is straightforward: does Columbia Gas Transmission, LLC (“Columbia”), have the right of eminent [303]*303domain to obtain easements over the land of objecting landowners, outside of the existing right of way, in order to replace deteriorating pipeline? The answer is equally straightforward and clear: yes.

The regulatory authority given to natural gas companies such as Columbia actually anticipates replacement outside the existing right of way as we discuss below, and contains no adjacency requirement. The issue before us, then, whether Columbia has a right to replace the pipeline outside of the existing right of way, is actually a non-issue. But, the District Court put a peculiar “spin” on the regulations in question, finding them to be ambiguous by adopting its own definition of “replace” and concluding that a “notice” of “proposed rulemaking” for “Emergency Reconstruction of Interstate Natural Gas Facilities” promulgated by the Federal Energy Regulatory Commission (“FERC”) after 9/11 should somehow be viewed as resolving this ambiguity in the law. Our dissenting colleague adopts this argument. However, we suggest that the statute and regulations are clear and the case before us is easily resolved.

Columbia, an interstate natural gas company subject to the jurisdiction of FERC, seeks to replace a portion of a natural gas pipeline (“Line 1655”) that runs in and around York County, Pennsylvania. Because the original location of the pipeline has become heavily populated, the replacement will not track the original line but instead will be outside the existing right of way. (App.27.)1 In an effort to obtain easements necessary to complete construction of the replacement, in March 2013, Columbia filed Complaints in Condemnation against four land-owning couples (the “Landowners”) in federal court. In May 2013, Columbia filed motions for partial summary judgment and for preliminary injunctions to acquire immediate possession of the easements. In June 2013, the Landowners also filed motions for summary judgment. The District Court subsequently denied Columbia’s motions and granted the Landowners’ motions, holding that Columbia did not have the right of eminent domain required to condemn the easements. The District Court’s conclusion rested on the determination that the relevant FERC regulation, 18 C.F.R. § 157.202(b)(2)(i), was ambiguous. As a result, the Court looked outside the regulations to a sentence in a notice of proposed rulemaking that it concluded set forth the agency interpretation. This was a mistake. The language of the governing regulations could not be more clear. For the reasons set forth below, we will reverse the judgments of the District Court.2

1. Background

Line 1655 is over fifty years old, and Columbia asserts that portions of the pipeline must be replaced to meet safety standards established by the Pipeline and Hazardous Materials Safety Administration. Columbia has already replaced 19,000 feet — or 95% — of the pipeline but has been stalled in replacing the last 1,000 feet be[304]*304cause it lacks the remaining necessary-easements — that is, the easements on and across the Landowners’ properties. Columbia attempted to obtain these easements through negotiation, as it had the others it needed, but was unsuccessful.3 Accordingly, Columbia filed a complaint in the District Court, seeking condemnation of the remaining easements to which it was entitled pursuant to the Natural Gas Act, 15 U.S.C. § 717f(h). Before addressing the District Court’s disposition of the case, we will set forth the statutory scheme that underpins Columbia’s entitlement to the easements.

A. Statutory Scheme

The Natural Gas Act 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 ... 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) (emphasis added). Accordingly, a certificate of public convenience and necessity gives its holder the ability to obtain automatically the necessary right of way through eminent domain, with the only open issue being the compensation the landowner defendant will receive in return for the easement. In 1983, FERC issued a blanket Certificate of Public Convenience and Necessity (the “FERC Certificate”) to Columbia that covers Line 1655. Columbia’s FERC Certificate states that Columbia is “authorized to conduct many routine activities and abandon facilities and service on a self-implementing basis without further authorization by the Commission.” (App.104.) (emphasis added) In defining “routine activities,” the Certificate references 18 C.F.R. § 157.203(b). This regulation provides that blanket certificate holders have automatic authorization to engage in transactions described in certain other provisions, including 18 C.F.R. § 157.208(a), which states, in relevant part:

If the project cost does not exceed the cost limitations set forth in column 1 of Table I, under paragraph (d) of this section, or if the project is required to restore service in an emergency, the certificate holder is authorized to make miscellaneous rearrangements of any facility, or acquire, construct, replace, or operate any eligible facility.

18 C.F.R. § 157.208(a) (emphasis added). Costs limitations are not an issue in this case.4 Thus, if Columbia is replacing an [305]*305“eligible facility,” this constitutes a “routine activity” and Columbia can conduct this activity on a “self-implementing basis without further authorization by the Commission.” (App.104.)5

It is important to note that if Columbia Gas did not have a blanket certificate, and instead merely possessed a certificate of public convenience and necessity authorizing construction of a mainline, for instance, it would be able nonetheless to construct or extend facilities “which constitute the replacement of existing facilities that have or will soon become physically deteriorated or obsolete, to the extent that replacement is deemed advisable, if ... [t]he replacement facilities ... will be located in the same right-of-way or on the same site as the facilities being replaced....” 18 C.F.R. § 2.55(b)(1); 15 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
768 F.3d 300, 2014 WL 4783697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/columbia-gas-transmission-llc-v-101-acres-more-or-less-ca3-2014.