Florida Southeast Connection, LLC v. 1.858 Acres of Land, More or Less, In Polk County, Florida et al
Filing
26
ORDER granting 5 Florida Southeast Connection, LLC's Motion for Preliminary Injunction. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 5/11/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FLORIDA SOUTHEAST CONNECTION,
LLC,
Plaintiff,
v.
Case No. 8:16-cv-689-T-17TBM
1.858 ACRES OF LAND, MORE
OR LESS, IN POLK COUNTY,
FLORIDA, and JAYSHIV BHUMI,
LLC,
Defendants.
______________________________/
ORDER
Before the Court is Florida Southeast Connection, LLC’s
(FSC)
Motion
for
Preliminary
Injunction
for
Immediate
Possession filed pursuant to Federal Rule of Civil Procedure
65 and Middle District of Florida Local Rule 4.06, which was
referred to the undersigned for disposition (Doc. # 9). FSC
seeks
a
preliminary
injunction
granting
it
immediate
possession and use of the Easements in this case for preinstallation activities to begin as soon as possible so that
construction can begin by June 1, 2016. Similar motions have
been filed in the related or companion cases.
I.
BACKGROUND
1
Pursuant to the Natural Gas Act (NGA), 15 U.S.C. § 717f,
the Federal Energy Regulatory Commission (FERC) issued an
“Order Issuing Certificates and Approving Abandonment” on
February 2, 2016. 1 That order issued FSC a certificate of
public
convenience
and
necessity
(FERC
Certificate)
authorizing it to construct and operate the Florida Southeast
Connection Project (the FSC Project or Project). The Project
encompasses approximately 126 miles of new pipeline, and
related
facilities
that
will
transport
natural
gas
in
interstate commerce from central Florida to Florida Power &
Light Company’s (FPL) Martin Clean Energy Center in Martin
County, Florida (the Martin Clean Energy Center).
If FSC, as the holder of a FERC Certificate, “cannot
acquire by contract, or is unable to agree with the owner of
the property to the compensation to be paid,” it may acquire
the necessary right-of-way (including land or other property
necessary for the proper operation of the pipeline) “by the
exercise of the right of eminent domain in” the United States
1
As a public record issued and maintained by FERC, this Court
takes judicial notice of the FERC Certificate, the Final
Environmental Impact Statement (FEIS) approved and adopted by
FERC, and all other records of the FERC proceedings relating
to the Project under Federal Rule of Evidence 201.
Transmission Agency of N. Cal. V. Sierra Pac. Power Co., 295
F.3d 918, 924 n.3 (9th Cir. 2002).
2
district court in which the property is located. 15 U.S.C. §
717f(h).
Over the past two years, FSC purchased from landowners
approximately 87% of the easement interests necessary for the
Project. However, FSC has been unable to purchase all of the
required easement interests through voluntary acquisitions.
As a result, FSC filed this action pursuant to 15 U.S.C. §
717f(h), and Rule 71.1, Fed. R. Civ. P., to condemn the rightof-way
and
other
property
interests
identified
in
the
Complaint (the Easements). 2 FSC has filed a number of related
cases to acquire other necessary easement interests in this
District and the Southern District of Florida.
In such NGA condemnation cases, the district court’s
role is limited to ordering “condemnation of property in
accord with a facially valid certificate.” Tenn. Gas Pipeline
Co. v. 104 Acres of Land More or Less, in Providence Cty. of
the State of R.I., 749 F. Supp. 427, 430 (D.R.I. 1990) (citing
Williams Nat. Gas Co. v. Okla. City, 890 F.2d 255, 262 (10th
Cir. 1989)). In other words, “[t]he District Court’s role is
to
evaluate
the
scope
of
the
certificate
and
to
order
condemnation of property as authorized in the certificate.”
2
Service of process was effected pursuant to Federal Rule of
Civil Procedure 71.1(d)(3). (Doc. # 14).
3
Id. at 430; Columbia Gas Transmission Corp. v. An Easement to
Construct,
Operate
&
Maintain
a
24-Inch
Pipeline
Across
Props. in Shenandoah Cty., Va., No. 5:07cv04009, 2008 WL
2439889, at *2 (W.D. Va. June 9, 2008).
II.
RELATED CASE PRECEDENT
“[O]nce a district court determines that a gas company
has the substantive right to condemn property under the NGA,
the court may exercise equitable power to grant the remedy of
immediate possession through the issuance of a preliminary
injunction.” E. Tenn. Nat. Gas Co. v. Sage (Sage), 361 F.3d
808, 828 (4th Cir. 2004). And, FSC is
entitled to a preliminary injunction if it show[s]:
“(1) a substantial likelihood of success on the
merits; (2) that irreparable injury will be
suffered unless the injunction is issued; (3) the
threatened injury to the moving party outweighs
whatever damage the proposed injunction might cause
the non-moving party; and (4) if issued, the
injunction would not be adverse to the public
interest.”
Jysk Bed’N Linen v. Dutta-Roy, 810 F.3d 767, 774 (11th Cir.
2015) (quoting BellSouth Telecomms., Inc. v. MCIMetro Access
Transmission Servs., LLC, 425 F.3d 964, 968 (11th Cir. 2005)).
FSC satisfies each of the elements and, therefore, is entitled
to the injunction it seeks.
Granting
settled
law.
such
Courts
injunctions
throughout
4
is
the
consistent
country
with
have
well-
granted
preliminary injunctive relief when a natural gas pipeline
company holding a valid FERC Certificate, and which satisfied
the
standard
possession
of
for
the
injunctive
necessary
relief,
sought
right-of-way
immediate
interests.
See,
e.g., Columbia Gas Transmission, LLC v. 1.01 Acres, More or
Less in Penn Twp., York Cty. Penn., Located on Tax ID No.
440002800150000000 Owned by Dwyane P. Brown & Ann M. Brown,
768 F.3d 300, 304 (3d Cir. 2014) (reversing district court
and
granting
immediate
possession
of
the
easement,
and
noting, “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.”); Sage, 361 F.3d at
828. 3
3
See also, e.g., Constitution Pipeline Co., LLC v. A
Permanent Easement for 1.29 Acres, & Temp. Easements for 1.58
Acres, in Jackson Twp., Susquehanna Cty., Penn. Tax Parcel
No. 092.00-2,056.00,000, No. 3:14-2453, 2015 WL 1219646, at
*4 (M.D. Pa. Mar. 17, 2015); Constitution Pipeline Co., LLC
v. A Permanent Easement for 2.40 Acres & Temp. Easements for
3.13 Acres in Davenport, Del. Cty., N.Y., No. 3:14-cv2046(NAM/RFT), 2015 WL 1638211, at *6 (N.D.N.Y. Feb. 24,
2015); Columbia Gas Transmission LLC v. 0.85 Acres, More or
Less, in Harford Cty., Md., No. WDQ-14-2288, 2014 WL 4471541,
at *8 (D. Md. Sept. 8, 2014); Nw. Pipeline Corp. v. 20' by
1,430' Pipeline Right of Way Easement 50’ x 1,560’ Temp.
Staging Area, No. CS-01-0246-FVS, 197 F. Supp. 2d 1241, 1246
(E.D. Wash. 2002); Tenn. Gas Pipeline Co. v. New England
5
III. FINDINGS ON THE NECESSARY ELEMENTS FOR A PRELIMINARY
INJUNCTION
A.
FSC Has Established a Substantial Likelihood of
Success on the Merits
FSC has demonstrated it meets the requirements of 15
U.S.C. § 717f(h) necessary to exercise the federal power of
eminent
domain:
(1)
FSC
holds
a
certificate
of
public
convenience and necessity from FERC for the Project; (2) the
Easements
sought
to
be
acquired
are
Certificate; and (3) FSC is unable to
authorized
by
the
acquire the Easements
by contract, or agree with the owner of the property on the
compensation to be paid for those interests. E. Tenn. Nat.
Gas, LLC v. 1.28 Acres in Smyth Cty., Va. (E. Tenn. Nat. Gas),
Nos. 1:06-CV-00022, 1:06-CV-00028, 1:06-CV-00029, 1:06-CV00036, 1:06-CV-00037, 1:06-CV-00044, 2006 WL 1133874, at *10,
13 (W.D. Va. Apr. 26, 2006) (“[I]t is undisputed that ETNG
has been granted a certificate of public convenience and
necessity from the FERC. As a certificate holder, the Act
grants ETNG the substantive right to condemn the property as
approved by the FERC.”); Columbia Gas Transmission, LLC v.
Power, CTL, Inc., 6 F. Supp. 2d 102, 104 (D. Mass. 1998);
Kern River Gas Transmission v. Clark County, Nev., 757 F.
Supp. 1110, 1116-17 (D. Nev. 1990); N. Border Pipeline Co. v.
127.79 Acres of Land, More or Less in Williams Cty., N.D.,
520 F. Supp. 170, 172-73 (D.N.D. 1981).
6
370.393 Acres, More or Less in, Balt. Cty., Md., No. 1:140469-RDB, No. 1:14-0469-RDB, 2014 WL 5092880, at *2 (D. Md.
Oct. 9, 2014) (“After obtaining the FERC Certificate of public
convenience and necessity, natural gas pipeline companies are
granted the authority to condemn property for the purpose of
constructing pipeline.”); 1.01 Acres, More or Less in Penn
Twp.,
York
Cty.
Penn.,
Located
on
Tax
ID
No.
440002800150000000 Owned by Dwyane P. Brown & Ann M. Brown,
768
F.3d
at
315
(“This
is
not
a
‘normal’
preliminary
injunction, where the merits await another day. In those
situations, the probability of success is not a certainty
such that weighing the other factors is paramount. Here, there
is no remaining merits issue; we have ruled that Columbia has
the right to the easements by eminent domain.”).
As
noted
earlier,
the
Court
acknowledges
that
its
examination here is limited because the findings in the FERC
Certificate—including the determination that the Project is
a matter of public convenience and necessity, and that the
lands along the Project path are necessary for use in the
Project—are conclusive in this condemnation proceeding, and
cannot be collaterally attacked here. E. Tenn. Nat. Gas, 2006
WL 1133874, at *13 (“The defendants in these cases have
introduced much evidence which attempts to call into question
7
the propriety of the FERC’s issuance of the Certificate and
the propriety of the approved route of the Jewell Ridge
Lateral pipeline. The defendants, however, cannot use these
cases to engage in an appellate review of the propriety of
this project.”); Guardian Pipeline, LLC v. 529.42 Acres of
Land, More or Less, in Kendall & McHenry Ctys., Ill., 210 F.
Supp. 2d 971, 974 (N.D. Ill. 2002) (“The jurisdiction of [a
district] court is limited to evaluating the scope of the
FERC Certificate and ordering condemnation as authorized by
that certificate”).
B.
FSC Will Suffer Irreparable Harm if an Injunction
is Not Issued, and in Turn FSC’s Customers and the
Public Will Suffer Harm
FSC has demonstrated a likelihood of irreparable harm if
a preliminary injunction is not issued.
1.
The public need will not be timely addressed
if an injunction is not issued
Both FERC and the Florida Public Service Commission
determined that there is a public need for the natural gas
that the Project will provide. FERC Certificate at ¶¶ 85-87;
Declaration of Jay Brandli (Brandli Dec.) at ¶ 19.
A delay in obtaining access to the Easements would delay
the entire Project and cause FSC to significantly risk failing
to meet its May 1, 2017, in-service deadline. Brandli Dec. at
8
¶ 17. If FSC does not complete construction by the May 1,
2017, in-service date, it will be unable to timely transport
price-competitive, natural gas to the Martin Clean Energy
Center to help meet the growing demand of natural gas for
electric generation, distribution, and end use markets in
Florida. Id. at ¶ 19; FERC Certificate at ¶ 9. In particular,
if the May 1, 2017, in-service date is not met, there will
likely be insufficient natural gas capacity to meet the
growing electricity needs of Floridians, which means oil
would be utilized as an alternate fuel, contributing to
increased costs to Florida customers and detrimental air
emissions since natural gas is a lower emissions fuel than
oil. Brandli Dec. at ¶ 19; FERC Certificate at ¶¶ 85-87.
2.
FSC will suffer irreparable
injunction is not issued
harm
if
an
FSC has demonstrated it will suffer irreparable harm if
immediate access and possession is not granted. Other federal
courts have recognized the irreparable harm that results from
the inefficiencies and added costs incurred when pipeline
construction is halted, or when crews must move around certain
parcels where the necessary easements have not been secured.
In Sage, the Fourth Circuit deemed the harm irreparable upon
recognizing that:
9
[c]onstructing a ninety-four-mile pipeline is a
complex project that can only progress in phases.
Certain portions of the project have to be
completed before construction can begin on other
portions. . . . [A]ny single parcel has the
potential of holding up the entire project. . . .
[T]o require ETNG to build up to a parcel of land
it does not possess, skip that parcel, and then
continue on the other side would prove wasteful and
inefficient.
Sage, 361 F.3d at 828-29 (original alterations, internal
quotation marks, and citations omitted); see also, e.g., 0.85
Acres, More or Less, in Harford Cty., Md., 2014 WL 4471541,
at *6 (finding that undue delay and costs in construction
constituted irreparable harm); Tenn. Gas Pipeline Co. v.
0.018 Acres of Land in Sussex Cty. N.J., No. 10-4465(JLL),
2010 WL 3883260, at *3 (D.N.J. Sept. 28, 2010) (determining
that a natural gas company would suffer irreparable harm from
a move around because “working around one small property is
likely to [be] very difficult and result in large additional
construction costs . . . [which] would not be able to be
recovered”); N. Border Pipeline Co. v. 64.111 Acres of Land,
More or Less, in Will Cty., Ill., 125 F. Supp. 2d 299, 301
(N.D. Ill. 2000) (determining that construction would be
delayed unless the pipeline company was granted immediate
possession,
resulting
in
irreparable
harm
because
the
increased construction costs could not be recovered from
10
defendants); Guardian Pipeline, L.L.C. v. 295.49 Acres of
Land, More or Less, in Brown Cty., Calumet Cty., Dodge Cty.,
Fond du Lac Cty., & Outagamie Cty., Wis., Nos. 08-C-0028, 08C-54, 08-C-29, 08-C-30, 2008 WL 1751358, at *22 (E.D. Wis.
Apr. 11, 2008) (“It is not economically feasible to skip over
properties scattered at various locations along the route and
then come back to them at a later time. To do so would require
Guardian to incur hundreds of thousands of dollars of expenses
to move the large amount of material, heavy equipment, and
personnel
from
property
to
property
as
they
become
available.”).
The
same
is
true
of
the
Project
here.
Without
a
preliminary injunction awarding immediate possession, FSC
will suffer the same wasteful and inefficient consequences
recognized by Sage and many other cases resulting from having
to halt the construction or move around properties where
necessary easements have not yet been obtained. Brandli Dec.
at ¶¶ 14-18. And, once construction begins, FSC will be liable
for any delays that occur if a contractor is unable to access
a property in sequential order. Id. at ¶ 18. In that event,
FSC could incur acceleration costs to recover lost time,
estimated
to
be
$45,000
or
more
per
day,
as
well
as
mobilization costs of up to $150,000 per crew. Id. The number
11
of composite crews required would be proportional to the
accumulated
delay.
Id.
If
there
is
a
move
around
of
a
property, FSC must pay the contractor move-around costs. Id.
Move-around costs will likely range between $400,000 and
$500,000 per full spread move-around. Id.
Further, for some portions of the Project, the pipeline
will be installed by the HDD method. Id. at ¶ 12. HDD
installation
requires
a
subsurface
crossing
of
multiple
properties with a single entry and exit point at each end of
the spread. Id. Since the use of the HDD method generally
involves
crossing
multiple
properties
across
the
FERC-
approved route, FSC must have simultaneous access to all of
those properties to begin use of the HDD method. Id. If FSC
does not have contiguous access to perform the HDD activities
along the Project route, it will have to relocate work to a
different location. Id. This would cause significant delay,
for which FSC would be liable. Id. at ¶ 18.
In addition, construction related uncertainties require
that FSC have immediate possession to meet its in-service
deadline. Id. at ¶ 17. Weather conditions, unexpected field
conditions, and other construction challenges, should they
arise, would require additional time to complete the Project,
12
further
increasing
the
risk
of
missing
the
in-service
deadline if immediate possession is not ordered. Id.
In looking at increased costs and delays, other federal
courts have found such harm in natural gas cases constitute
the
type
of
irreparable
harms
that
warrants
injunctive
relief. In Sage, for example, the Fourth Circuit determined
that a natural gas company would suffer irreparable harm
without
a
preliminary
injunction
because
the
pipeline
construction would suffer “‘undue delay’ and that this delay
would cause ‘significant financial harm to both [the natural
gas company] and some of its putative customers.’” 361 F.3d
at 828; see also A Permanent Easement for 2.40 Acres & Temp.
Easements for 3.13 Acres in Davenport, Del. Cty., N.Y., 2015
WL 1638211, at *5 (holding that the plaintiff natural gas
company
“demonstrated
it
will
sustain
immediate
and
irreparable harm in the absence of the injunction” relying on
the gas company’s affidavit that “explain[ed] in substantial
detail the construction schedule, the FERC requirements prior
to construction, and other restrictions on construction, as
well as potential monetary losses.”).
Here, FSC will suffer the same irreparable harm if
possession is delayed. If FSC is not granted possession and
use
until
all
of
the
related
13
condemnation
actions
are
ultimately tried to completion, it will miss the Project’s
in-service deadline. Brandli Dec. at ¶ 18; Transcon. Gas Pipe
Line Co., LLC v. Permanent Easement Totaling 2.322 Acres,
More or Less, & Temp. Easements Totaling 3.209 Acres, More or
Less,
Over
a
Parcel
of
Land
in
Brunswick
Cty.,
Va.
of
Approximately 83.00 Acres in Size, No. 3:14-cv-00400-HEH,
2014 WL 4365476, at *5-6 (E.D. Va. Sept. 2, 2014) (determining
that failing to meet an in-service deadline was sufficient to
establish irreparable harm); see also Sage, 361 F.3d at 828
(recognizing that “[s]cheduling and conducting those hearings
. . . ‘will obviously take an extended period of time.’”). To
meet its in-service deadline of May 1, 2017, recognized by
FERC, FSC must obtain immediate use and possession of the
necessary easements. Brandli Dec. at ¶ 17; FERC Certificate
at ¶ 31.
C.
The Threatened Injury to FSC Outweighs Whatever
Damage, if Any, the Proposed Injunction Might Cause
the Defendants
The Defendants will not be harmed if the injunction is
entered. The Defendants’ monetary relief is a matter of
timing, as the property at issue “would still be disturbed,
albeit at a later time, if just compensation was determined
first.”
Sage,
361
F.3d
at
829.
“[T]he
only
‘harm’
to
Defendants is that of compensation – an issue that will not
14
change depending on whether [the court] grant[s] or den[ies]
the
injunction.”
Columbia
Gas
Transmission
Corp.
v.
An
Easement to Construct, Operate, & Maintain a 24-inch Gas
Transmission Pipeline Across Props. in Greene Cty., Va.,
Owned by Michael E. Walker, Alan D. Ward, Judge Norman K.
Moon Norma J. Caron-Ward, Ronne Edward Lawson, Doris Jean
Lawson, David Roach, Donna L. Roach, Leonidas M. Schwartz,
Roslyn J. Schwartz, Winston D. Schwartz, Alice W. Vining and
George J. Vining III, No. 3:07cv00028, 2007 WL 2287673, at *4
(W.D. Va. July 20, 2007); 0.018 acre Acres of Land in Sussex
Cty., N.J., 2010 WL 3883260, at *3 (“The Court is sympathetic
to the [defendant’s] personal situation and understands that
this project will be a disruption for her family at this
challenging personal time. However, no evidence has been
submitted to support the conclusion that delaying access to
the property will alleviate this disruption.”).
Additionally, this Court will condition the preliminary
injunction on FSC posting a security bond in the amount of
$23,800. That bond will blunt or negate any potential claim
of irreparable harm to Defendants. Sage, 361 F.3d at 829.
D.
Issuing the Injunction Furthers the Public Interest
The
FERC
Certificate
and
the
purpose
of
the
NGA
demonstrate that the public interest weighs in favor of
15
granting
FSC
immediate
possession
of
the
Easements.
“Congress passed the Natural Gas Act and gave gas companies
condemnation power to insure that consumers would have access
to an adequate supply of natural gas at reasonable prices.”
Sage, 361 F.3d at 830; 0.018 acre Acres of Land in Sussex
Cty., N.J., 2010 WL 3883260, at *3 (“With regard to the public
interest factor, the Court finds that this prong is easily
met under the circumstances of this case. By granting the
certificate, FERC made a determination that the pipeline is
necessary and in the public interest. This conclusion was
reached
after
an
extensive
administrative
process
that
weighed the harms to the public, including many individual
homeowners[’]
objections,
against
the
need
for
the
pipeline.”).
FERC made that same public interest determination here
when it issued the FERC Certificate to FSC. FERC found that
the two existing pipelines are either fully or nearly fully
subscribed. FERC Certificate at ¶ 74. It agreed with the
Florida Public Service Commission’s findings of public need
based on the demand for natural gas for natural gas-fired
power plants, and recognized that even “[t]he expansion of
existing pipelines in Florida will not satisfy the identified
need
of
a
new
transportation
16
option.”
Id.
at
¶¶
85-87.
Further, a delay in the in-service date will harm FSC’s
customer, FPL, and in turn, numerous members of the public
who are residential and commercial customers of this public
utility.
Granting FSC immediate possession of these easements has
additional public benefits. Supplying natural gas for clean
energy production is in the public interest. See Sage, 361
F.3d at 830 (“The project serves the public interest because,
among other things, it will bring natural gas to portions of
southwest Virginia for the first time. This will make gas
available to consumers, and it will help in the efforts of
local communities to attract much-needed new business. On a
larger
scale,
the
pipeline
will
make
gas
available
for
electric power generation plants.”); E. Tenn. Nat. Gas, 2006
WL 1133874, at *14 (“[T]here is a substantial public interest
at stake in this case – the need to capture and supply as
much natural gas to the market as soon as possible.”).
Additionally,
FERC
determined
that
“the
FSC
Project
would benefit the state and local economies by creating a
short-term stimulus to the affected areas through payroll
expenditures,
local
purchase
of
consumables
and
project-
specific materials, and sales tax.” FEIS at § 3.10.3.7. FSC
anticipates that the Project will hire up to 500 construction
17
workers for the job. Id. at § 3.10.3.1. FSC estimates that
between $3.6 million and $7.2 million of its total payroll on
the project would be received by local workers. Id. at §
3.10.3.7.
Additionally,
FSC
estimates
that
another
$91.2
million would be spent locally on consumables and projectspecific materials. Id. Postponing these benefits is not in
the public interest. See Sage, 361 F.3d at 829 (“[D]elay in
construction
of
the
pipeline
would
hinder
economic
development efforts in several Virginia counties.”). Thus,
the
public
interest
is
benefited
by
the
issuance
of
an
injunction permitting FSC to move forward with the Project.
IV.
CONCLUSION
Weighing the relevant factors, the Court finds that FSC
is entitled to a preliminary injunction granting immediate
access to, and possession of, the Easements described in
Composite Exhibit 3 to the Complaint.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
1.
FSC’s
Motion
for
Preliminary
Injunction
for
Immediate Possession (Doc. # 5) is GRANTED.
2.
Upon FSC posting a proper security bond with the
Clerk of this Court in the amount of $23,800, the
following shall occur:
18
a.
FSC
shall
possession
have
of,
immediate
the
access
Easements
to,
described
and
in
Composite Exhibit 3 to the Complaint; and
b.
FSC
may
immediately
activities
so
begin
that
pre-installation
construction-related
activities can commence by June 1, 2016, for
the purposes of constructing the Project’s
pipelines
and
related
facilities
at
the
Easements described in Composite Exhibit 3 to
the Complaint.
3.
All
pre-installation
and
construction-related
activities shall be consistent with the Easements
acquired by FSC and obligations agreed to by FSC as
set forth in Composite Exhibit 3 to the Complaint,
the
FERC
Certificate,
and
all
other
required
regulatory permits.
DONE and ORDERED in Chambers in Tampa, Florida, this 11th
day of May, 2016.
19
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