Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less
768 F.3d 300
| 3rd Cir. | 2014Background
- Columbia Gas, holding a 1983 FERC blanket Certificate, sought to replace ~1,000 feet of aging Line 1655 in York County, PA, and planned a new alignment outside the existing right-of-way after negotiations for easements with four landowner couples failed.
- Columbia filed federal condemnation actions under the Natural Gas Act, seeking easements and immediate possession; District Court granted landowners’ summary judgment, concluding FERC regulations were ambiguous and read an adjacency requirement into “replacement.”
- District Court relied on a 2003 FERC Notice of Proposed Rulemaking (post‑9/11 emergency reconstruction guidance) to support an adjacency limitation; FERC later issued a 2013 Final Rule footnote stating Part 157 imposes no location restriction.
- The Third Circuit majority held §157.202(b)(2)(i) and §157.208(a) unambiguously allow replacement facilities outside existing rights-of-way for blanket certificate holders (i.e., no adjacency requirement) and reversed.
- The court also granted Columbia preliminary injunctions for immediate possession, finding irreparable harm (safety, seasonal construction constraints, risk to service) and minimal incremental harm to landowners given eminent‑domain entitlement and guaranteed compensation.
Issues
| Issue | Plaintiff's Argument (Landowners) | Defendant's Argument (Columbia) | Held |
|---|---|---|---|
| Whether Part 157 permits replacement pipeline outside existing ROW without new FERC authorization | “Replace” implies restoring to the same place or adjacent location; regulations ambiguous; agency guidance (2003 Notice) contemplates adjacency; project requires new certificate | Blanket‑certificate automatic authorization covers "eligible facility" replacements that do not meet §2.55(b) location/workspace limits — no adjacency requirement | Held for Columbia: regulations unambiguous that Part 157 permits replacement outside existing ROW; no adjacency requirement. |
| Whether the District Court properly relied on the 2003 Notice and denied deference to FERC’s 2013 Final Rule footnote | The 2013 footnote is a post‑hoc reversal; Auer deference inappropriate because agency prior interpretation conflicted | FERC’s Final Rule clarifies and is consistent with regulations; even if ambiguous, agency’s later interpretation controls | Held: Final Rule confirms Part 157 permits non‑adjacent replacements; agency interpretation consistent and deference unnecessary because regulation unambiguous; alternatively entitled to deference. |
| Whether Columbia is entitled to immediate possession via preliminary injunction pending condemnation valuation | Landowners: economic injury insufficient; speculative safety claims; no imminent danger shown | Delay threatens safety, service for heating season, economic loss and loss of reimbursement rights; construction season constraints produce irreparable harm | Held for Columbia: preliminary injunction granted — likelihood of success resolved, irreparable harm and public interest weigh for immediate possession. |
| Whether treating distant replacements as "replacement" versus "relocation" makes Part 157 internally inconsistent or unconstitutional | Such a broad reading delegates effectively limitless eminent‑domain power to private utilities without required notice/hearings; constitutional avoidance favors a locational limit | Regulations distinguish replacement and relocation but include eligible replacements outside §2.55(b); constraints (cost caps, notice, environmental review, sound‑engineering requirement) limit abuse | Held: court rejects constitutional‑avoidance challenge here; regulatory text and limitations suffice and Columbia’s authority sustained (constitutional challenge not before court). |
Key Cases Cited
- Auer v. Robbins, 519 U.S. 452 (agency interpretation of its own regulation ordinarily controlling unless plainly erroneous)
- Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (Auer deference inappropriate where agency interpretation conflicts with prior positions or lacks fair and considered judgment)
- Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326 (agency interpretations need not be the only reasonable reading to prevail; discussion of deference limits)
- Skidmore v. Swift & Co., 323 U.S. 134 (lesser deference—persuasive force—where Auer is inappropriate)
- Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (FERC’s certificate process and review obligations)
- United States v. Carmack, 329 U.S. 230 (delegations of eminent‑domain power to private entities are limited in nature)