ADORERS OF THE BLOOD OF CHRIST, UNITED STATES PROVINCE, N/K/A ADORERS OF THE BLOOD OF CHRIST, UNITED STATES REGION, SUCCESSOR BY MERGER TO ADORERS THE BLOOD OF CHRIST, PROVINCE OF COLUMBIA, PA, INC., fоrmerly known as SAINT JOSEPH‘S CONVENT, MOTHER HOUSE OF SISTER ADORERS OF THE MOST PRECIOUS BLOOD, COLUMBIA, PA also known as SISTERS ADORERS OF THE MOST PRECIOUS BLOOD, ST. JOSEPH CONVENT, COLUMBIA, PA formerly known as SAINT JOSEPH CONVENT MOTHERHOUSE OF THE ADORERS OF THE BLOOD OF CHRIST, COLUMBIA, PENNSYLVANIA, INC.; SISTER DANI BROUGHT; SISTER MARY ALAN WURTH; SISTER SARA DWYER; SISTER MARIA HUGHES; SISTER THERESE MARIE SMITH, Appellants v. FEDERAL ENERGY REGULATORY COMMISSION; COMMISSIONER OF THE FEDERAL ENERGY REGULATORY COMMISSION; TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, C/O CT CORPORATION SYSTEM
No. 17-3163
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 25, 2018
PRECEDENTIAL. Argued January 19, 2018. Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges.
J. Dwight Yoder, Esq. [Argued], Gibbel, Kraybill & Hess, 2933 Lititz Pike, P.O. Box 5349, Lancaster, PA 17606, Counsel for Appellants
Susanna Y. Chu, Esq. [Argued], Robert H. Solomon, Esq., Federal Energy Regulatory Commission, 888 1st Street, N.E., Washington, DC 20426, Counsel for Appellees Federal Energy Regulatory Commission and Commissioner Federal Energy Regulatory Commission
Elizabeth U. Witmer, Esq. [Argued], Saul Ewing Arnstein & Lehr, 1200 Liberty Ridge Drive, Suite 200, Wayne, PA 19087
Patrick F. Nugent, Esq., Sean T. O‘Neill, Esq., John F. Stoviak, Esq., Saul Ewing Arnstein & Lehr, 1500 Market Street, Centre Square West, 38th Floor, Philadelphia, PA 19102,
OPINION
GREENAWAY, JR., Circuit Judge.
Under the Natural Gas Act (“NGA“),
In this case, the Appellants are the Adorers of the Blood of Christ (the “Adorers“),
On appeal, the Adorers contend that the District Court erred because their RFRA claim raises a federal question, over which the court had jurisdiction pursuant to
I1
A
The Pipeline Project proposed by Transco consists of 199.5 miles of new pipeline in Pennsylvania connecting to existing pipelines running to South Carolina. The Pipeline Project is marketed as potentially supplying more than seven million American homes with enough natural gas to meet their daily needs by connecting natural gas producing Pennsylvania regions to markets in the mid-Atlantic and southeastern states.
The Pipeline Project consists of many subsections, including “Central Penn Line South,” a proposed 127.3-mile section of the Project that will run from Lancaster County, Pennsylvania to Columbia, Pennsylvania, with a forty-two-inch diameter capable of transporting 1.7 dekatherms (billion cubic feet) of natural gas per day, and a maximum operating pressure of 1,480 pounds per square inch. The subsection would facilitate the extraction, harnessing, transportation, and use of natural gas. The Pipeline Project would run through the Adorers’ property in Columbia, Pennsylvania.
B
On July 29, 2014, FERC published a Notice of Intent to Prepare an Environmental Impact Statement for the Planned Atlantic Sunrise Expansion, Request for Comments on Environmental Issues, and Notice of Public Scoping Meetings (“NOI“) in the Federal Register, see 79 Fed. Reg. 44,023 (2014), and mailed it to nearly 2,500 interested parties, including
According to FERC, it received over six hundred written comments from various interested parties, and ninety-three speakers provided comments at the scoping meetings held between August 4 and 7, 2014. The Adorers did not provide a written comment or attend any one of these meetings.
Transco filed its project application with FERC for a certificate of public convenience and necessity for the Pipeline Project on March 31, 2015. On October 22, 2015, FERC mailed letters to landowners potentially affected by the proposed Pipeline Project. The letter briefly described proposed project reroutes under consideration, invited newly affected landowners to participate in the environmental review process, and provided a special thirty-day limited scoping period. Among the recipients of the October 22, 2015 letter were the Adorers, who failed to respond to the letter.
The Adorers are “an ecclesial group of women living in community” and practicing their deeply-held religious convictions, App. 28, “whose religious practice includes protecting and preserving creation, which they believe is a revelation of God,” App. 24. They believe that “God calls humans to treasure land as a gift of beauty and sustenance that should not be used in an excessive оr harmful way.” App. 24. Part of their practice is to “protect, preserve and treasure the land that [they] own.” App. 24.
The Adorers own the parcel of land in Columbia, Pennsylvania that is at issue here. The land has been used to sponsor the St. Anne‘s Retirement Community, and for growing crops by local farmers. The Adorers assert that their intentional decision on how to use the land “is an integral part of exercising their well-established and deeply-held religious beliefs as active and engaged stewards of God‘s earth.” App. 32.
In 2015, the Adorers followed an encyclical2 letter titled ”Laudato Si’ of the Holy Father Francis on Care for our Common Home,” written by Pope Francis. In the letter, Pope Francis prоvides a comprehensive theological basis that, as an act of religious belief and practice, members of the Roman Catholic Church must preserve the Earth as God‘s creation. Specifically, Pope Francis identifies that climate change based, among other things, “on the great concentration of greenhouse gases related mainly as a result of human activity” and “aggravated by a model of development based on the intensive use of fossil fuels . . . is a global problem.” Pope Francis, Laudato Si’ of the Holy Father Francis on Care for our Common Home 18–19, 20–21 (2015). Accordingly, the letter makes a calling “to devisе larger strategies to halt environmental degradation and to encourage a ‘culture of care’ which permeates all of society.” Id. at 166–67.
On May 5, 2016, FERC issued a draft Environmental Impact Statement (“EIS“) addressing the issues raised during the
On February 3, 2017, FERC issued an “Order Issuing Certificate” to Transco authorizing the construction and operation of the Pipeline Project. Among other things, the Order granted Transco the right to take private property on the Pipeline Project by eminеnt domain, should landowners refuse to voluntarily convey a right to use their land. See
Based on the issuance of the Order, the Adorers refused to grant Transco an easement on the land to begin construction.3 On April 14, 2017, Transco initiated condemnation proceedings against them in the Eastern District of Pennsylvania, pursuant to the NGA and Federal Rule of Civil Procedure 71.1. Two months later, given that the Adorers had failed to answer the complaint or file any sort of responsive motion, Transco filed an “Emergency Motion for Default Judgment and for Possession of Rights of Way in Unopposed Condemnation Action,” and soon after moved for a preliminary injunction for possession of those rights of way, which the Adorers opposed. The District Court then issued an order granting Transco‘s right to condemn the relevant section of the Adorers’ land on July 7. On August 23, the District Court entered a preliminary injunction granting Transco access to and the rights of way on the Adorers’ land upon the posting of a bond in the amount of $329,220 (which Transco paid one week later).
The Adorers did not object, appeal or seek rehearing regarding any order issued related to these condemnation proceedings.
Instead, on July 14, 2017, a week after the District Court issued the order granting Transco‘s right to condemn, the Adorеrs filed their own complaint against FERC in the Eastern District of Pennsylvania seeking declaratory judgment, alleging that FERC violated their rights under RFRA, and additionally seeking injunctive relief preventing the Pipeline Project from running across their land. They later filed an amended complaint reiterating the same claims, listing additional plaintiffs, and adding Transco as a defendant.4
On September 28, 2017, the District Court in the RFRA action granted FERC‘s and Transco‘s motions to dismiss for lack of subject matter jurisdiction. The court held that RFRA did not allow the Adorers to circumvent the specific procedure prescribed by the NGA for challenging a FERC order. In other words, the Adorers’ RFRA claim did not change the basic fact that, under the NGA, “no entity may seek judicial review of a FERC order unless it first sought rehearing from the agency.” App. 8. Because the Adorers had failed to seek FERC rehearing, the court concluded that it was foreclosed from hearing their claims. The Adorers then filed this appeal.
II5
According to the Adorers, the District Court erred in dismissing the complaint for lack of subject matter jurisdiction because RFRA grants them a statutory right to assert an appropriate claim in district court. The NGA, they contend, cannot be used to foreclose that statutory right because Congress explicitly provisioned RFRA to supersede all оther Federal law. Thus, to the extent that RFRA and the NGA conflict, the Adorers argue that the latter must yield. While we agree that the NGA would have to necessarily yield to RFRA if the two statutes indeed conflicted, we conclude that the two statutes do not conflict. Rather, the NGA merely provides for complementary procedural requirements that a claimant must adhere to when exercising their RFRA right to a “judicial proceeding.”
“When reviewing an order dismissing a claim for lack of subject matter jurisdiction, we exercise plenary review over legal conclusions and review findings of fact for clear error.” White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010).
We begin by examining the two statutоry schemes that the Adorers argue are in conflict. Section 7 of the NGA grants FERC the authority to approve or deny the construction of interstate natural gas pipelines. See
Once FERC has issued a certificate to a developer, the certificate holder has the ability to acquire “the necessary right-of-way to construct, operate and maintain a pipe line or pipe lines” from unwilling landowners by eminent domain.
RFRA, meanwhile, instructs that the “[g]overnment shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability” unless the government demonstrates that the burden “is the least restrictive means” to further a “compelling government interest.”
III
A
The Adorers contend that the plain language of this judicial relief provision grants them a statutory right to assert their RFRA claim in district court. We disagree. The NGA is a detailed statute, setting forth specific provisions on the procedure by which approval and subsequent review of a pipeline project may be attained. The statute provides that “[a]ny рarty . . . aggrieved by an order issued by the Commission . . . may obtain a review of such order in the court of appeals of the United States . . . by filing in such court, within sixty days after the order of the Commission upon application for rehearing.”
Besides, even if the NGA did not expressly preclude jurisdiction in this case, we would nonetheless find that it did so implicitly under the two-step framework provided in Thunder Basin Coal v. Reich, 510 U.S. 200 (1994). At the first step, the court asks whether Congress’ intent to preclude district court jurisdiction is “fairly discernible in the statutory scheme,” based on аn examination of the statute‘s text, structure, and purpose. Id. at 207. The second step, in turn, asks whether plaintiffs’ claims “are of the type Congress intended to be reviewed within this statutory structure.” Id. at 212. At this stage the court considers three factors: (1) whether the statutory scheme “foreclose[s] all meaningful judicial review;” (2) the extent to which the plaintiff‘s claims are “wholly collateral” to the statute‘s review provision; and (3) whether “agency expertise could be brought to bear on the . . . questions presented.” Id. at 212–13.
Here, Congress’ intent to vest jurisdiction in circuit courts is “fairly discernible in the” NGA. See Thunder Basin, 510 U.S. at 207 (setting forth first prong of two-part test). Only “the court of appeals оf the United States” where the natural gas company is located or has its principal place of business or the District of Columbia Circuit may “affirm, modify, or set aside [a FERC] order in whole or in part.”
At step two, we think the Adorers’ claims “are of the type Congress intended to be reviewed within this statutory structure.” Thunder Basin, 510 U.S. at 212. First, the statutory authority, the NGA, does not overclose all meaningful judicial review because it vests thе courts of appeals with jurisdiction to review FERC orders. See id. at 212–13. Second, the claims asserted here are not “wholly collateral” because they “inhere in the controversy;” that is, if the Adorers are successful in their administrative challenge, the FERC order will be modified or set aside. Id. Finally, although the constitutional claims may be outside of FERC‘s expertise, this is tempered by the court of appeals‘s review, which regularly resolves constitutional issues. See Massieu v. Reno, 91 F.3d 416, 420 n.4 (3d Cir. 1996) (“[T]he [Thunder Basin] Court‘s fundamental point, we think, was that both statutory and constitutional claims could be meaningfully addressed in the court of appeals.“); see also Elgin v. Dep‘t of Treas., 567 U.S. 1, 19 (2012) (“We see nothing extraordinary in a statutory scheme thаt vests reviewable factfinding authority in a non-Article III entity that has jurisdiction over an action but cannot finally decide the legal question to which the facts pertain.“).
We are therefore not convinced that “the plain language of RFRA” grants the Adorers, Adorers Br. 22, the statutory right to assert their RFRA claim in a federal district court. As the Supreme Court has explained, the general “principle” that, “when federal law creates a private right of action . . . district courts possess federal-question jurisdiction under § 1331,” is one that does not “endure[]” where “Congress divests federal courts of their § 1331 adjudicatory authority.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 378–79 (2012). Thus, we reject the Adorers’ сontention that the District Court committed an error of law when it applied the provisions of the NGA to conclude it lacked subject matter jurisdiction to hear their substantive RFRA claims.7
Our sister circuits also agree. In American Energy Corporation v. Rockies Express Pipeline LLC, the Sixth Circuit concluded that the NGA‘s reticulated procedure provides that the “relevant court of appeals . . . has ‘exclusive’ jurisdiction ‘to affirm, modify, or set aside [FERC‘s] order in whole or in part‘” and that “no entity may seek judicial review of a FERC order unless it first sought rehearing from the agency.” 622 F.3d 602, 605 (6th Cir. 2010) (internal citations omitted). The court emphasized that “[e]xclusive means exclusive, and the [NGA] nowhere permits an aggrieved party otherwise to pursue collateral review of a FERC certificate in state court or federal district court.” Id.; see also La Voz Radio de la Comunidad v. F.C.C., 223 F.3d 313, 319 (6th Cir. 2000) (concluding that RFRA “does not provide that the ‘judicial proceeding’ must be in the district court as opposed to a designated court of appeals” and reasoning that “Congress has equipped the FCC with an impressive arsenal of remedies,” of which the “effectiveness
In addition, the Supreme Court reasoned that, as a practical matter, Title VII‘s remedial provisions would be entirely undermined “if a plaintiff could circumvent its procedural requirements by ‘the simple expedient of putting a different label on the pleadings.‘” Id. (quoting Brown, 425 U.S. at 833).
Indeed, the Supreme Court has long held that the Federal Power Act‘s (“FPA“), statutory review scheme,
Thus, the District Court did not err in concluding that it lacked subject matter jurisdiction.
B
The Adorers further claim that, even if they had indulged the administrative process, they could not have asserted their rights under RFRA within the NGA because they would have had “to have anticipated a possible RFRA violation and affirmatively acted to become a party to a private third party‘s administrative application.” Adorers Br. 41-42. We disagree.9
The Adorers’ contention is unavailing because FERC may hear any claim raised before it—even potential violations of federal law. There is no inherent inhibition to FERC hearing a potential claim in the first instance because it is statutorily granted the authority to hear any claim from an affected party when raised timely. It may adjudicate these claims in a way it believes appropriate. If an affected party disagrees with the adjudication of her claim, she has the opportunity for direct appeal before a federal court of appeals.10
Moreover, just as an objector has a fundamental right to raise concerns prompted by religious beliefs at the administrative level, so, too, FERC bears a commensurate responsibility to carefully consider those objections and to treat respectfully the expression of sincerely-held religious beliefs. See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm‘n, 138 S. Ct. 1719, 1732 (2018) (an objector is “entitled to a neutral decisionmaker who w[ill] give full and fair consideration to h[er] religious objection“). Likewise, although we hold today that such objections must be raised in the administrative forum under FERC‘s exclusive regime to preserve appellate review, nothing in this opinion should be construed to call into question the sincerity of the deeply-held religious beliefs expressed by the Adorers.
If the Adorers had participated in the administrative process, FERC may have denied or modified the conditions of Transco‘s certificate. Or, if FERC failed to do so, the reviewing court of appeals may have ruled in the Adorers’ favor. Under these circumstances, the Adorers would have, at the very least, had the opportunity to seek the relief they so desire today.11 But because they failed to engage with the NGA‘s procedural regime, we are without jurisdiction to hear the Adorеrs’ claims.12
IV
For the foregoing reasons, we hold that a claim under RFRA,
Notes
Judge Stapleton‘s Concurrence in Francis, with which the Majority did “not disagree“, id. at 272 n.7, is of particular relevance here. Judge Stapleton relied on Brown v. General Services Administration, 425 U.S. 820 (1976) to highlight the Supreme Court‘s analysis in enunciating that Title VII provides “the exclusive, pre-emptive [sic] administrative and judicial scheme for the redress of federal employment discrimination.” Id. at 272 (Stapleton, J., concurring) (quoting Brown, 425 U.S. at 829). As Judge Stapleton observed, the Supreme Court opined that Title VII should supersede general statutes under the canon of statutory interpretation that resolves tension between specific and general statutes, favoring specific statutes. Francis, 505 F.3d at 272 (Stapleton, J., concurring).