Columbia Gas Transmission, LLC v. 101 Acres, and 41,342 Sq. Ft More or Less in Heidelberg Township, York County, Pennsylvania, Located on Tax ID# 30000EE01600000000, Owned By Bradley E. Herr and Elizabeth M. Herr et al
Filing
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MEMORANDUM (Order to follow as separate docket entry) - Re Plaintiff's motion to alter or amend judgment 47 ; defendants' motion 60 and Plaintiff's motion 64 . Signed by Honorable Matthew W. Brann on 5/20/14. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
COLUMBIA GAS
TRANSMISSION, LLC,
Plaintiff
v.
1.01 ACRES, MORE OR LESS
IN PENN TOWNSHIP, YORK
COUNTY, PENNSYLVANIA,
LOCATED ON TAX
ID# 440002800150000000, OWNED
BY DWAYNE P. BROWN AND
ANN M. BROWN, et al.,
Defendants.
COLUMBIA GAS
TRANSMISSION, LLC,
Plaintiff
v.
101 ACRES, AND 41,342 SQ. FT.
MORE OR LESS IN HEIDELBERG
TOWNSHIP, YORK COUNTY,
PENNSYLVANIA, LOCATED ON
TAX ID# 30000EE01600000000,
OWNED BY BRADLEY E. HERR
AND ELIZABETH M. HERR, et al.,
Defendants.
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Case No. 4:13-cv-00778
(Judge Brann)
Case No. 4:13-cv-00783
(Judge Brann)
COLUMBIA GAS
TRANSMISSION, LLC,
Plaintiff
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v.
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1.5561 ACRES, MORE OR LESS
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IN HEIDELBERG TOWNSHIP,
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YORK COUNTY,
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PENNSYLVANIA, LOCATED ON :
TAX ID# 30000ED010300000000, :
OWNED BY MYRON A. HERR
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AND MARY JO HERR, et al.,
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Defendants.
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COLUMBIA GAS
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TRANSMISSION, LLC,
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Plaintiff
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v.
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1.010 ACRES, MORE OR LESS
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IN PENN TOWNSHIP, YORK
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COUNTY, PENNSYLVANIA,
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LOCATED ON TAX
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ID# 440002800240000000, OWNED :
BY DOUGLAS W. HILYARD AND :
TESSA J. HILYARD, et al.,
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Defendants.
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Case No. 4:13-cv-00785
(Judge Brann)
Case No. 4:13-cv-00786
(Judge Brann)
MEMORANDUM
May 20, 2014
For the following reasons, the Court denies the motions of Columbia Gas
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Transmission, LLC (hereinafter, “Columbia Gas”) to alter or amend judgment.
I.
Background
On December 13, 2013, plaintiff Columbia Gas timely moved to alter or
amend judgment under Fed. R. Civ. P. 59(e). The judgment in question is the
Court’s November 15, 2013 grant of summary judgment in favor of the various
defendant landowners. The Court’s reasons for granting summary judgment are set
forth in an October 24, 2013 memorandum opinion, which is available on the four
dockets set forth in the caption and at 2013 WL 5773414.
To avoid redundancy, the Court assumes familiarity with its previous
opinion. In short, faced with ambiguous regulatory provisions, 18 C.F.R. §§
157.202(b)(2)(I) & 157.208(a), the Court deferred to the Federal Energy
Regulatory Commission’s (hereinafter, “FERC”) interpretation of its own
regulations and held that Columbia Gas’s Line 1655 project in York County,
Pennsylvania does not constitute a “replacement” of existing pipeline because the
project involves rerouting the pipeline around a densely populated area. Corollary
to this holding, the Line 1655 project does not qualify for pre-authorization under
Columbia Gas’s certificate of public convenience and necessity (hereinafter,
Columbia Gas’s “blanket certificate”), and Columbia Gas lacks authority to
condemn pipeline easements from the landowners as necessary to complete Line
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1655 project. Accordingly, the Court granted summary judgment in favor of the
defendant landowners, who seek to prevent Columbia Gas’s taking of the
easements by condemnation.
Columbia Gas’s motion to alter or amend judgment is prompted by FERC’s
Final Rule entitled Revisions to Auxiliary Installations, Replacement Facilities,
and Siting and Maintenance Regulations, issued on November 22, 2013, just one
week after the Court’s final order in the landowners’s favor. 78 Fed. Reg. 72794
(Dec. 4, 2013) (to be codified at 18 C.F.R. §§ 157 & 380). In a footnote to the
discussion of the new Rule, FERC states the following:
We note that in instances where a pipeline company needs to rely on its
Part 157 certificate to construct auxiliary or replacement facilities
because they do not satisfy the location or work space limitations of
section 2.55, the Part 157 blanket certificate regulations impose no
limitations on the placement of the facilities. While the Commission has
indicated previously that it is contemplated that replacement facilities
constructed under blanket authority would usually be located adjacent to,
if not within, an existing right-of-way, sections 157.202(b)(2)(i) and
157.210 permit the construction of non-main line facilities and main line
facilities, respectively, without restriction on their location. For example,
a company can rely on its Part 157 blanket certificate to replace the
capacity of a segment of obsolete pipeline with new pipeline that may
need to be located at considerable distance from the old pipeline in order
to avoid a housing development constructed since the old pipeline was
installed or to install auxiliary facilities such as anodes offset from the
existing right-of-way to provide cathodic protection.
Revisions to Auxiliary Installations, 78 Fed. Reg. at 72,804 n.78. Columbia Gas
argues that this footnote runs contrary to the Court’s decision, which, based on
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what FERC concedes it had “indicated previously,” held that a company could not,
in FERC’s words, “rely on its Part 157 blanket certificate to replace the capacity of
a segment of obsolete pipeline with new pipeline that may need to be located at
considerable distance from the old pipeline in order to avoid a housing
development constructed since the old pipeline was installed . . . .” Id.
Accordingly, Columbia Gas seeks reversal of the Court’s holding and an order
vacating judgment in favor of the landowners.1
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Columbia Gas also advances the risible argument that “a quarter-mile
distance between two objects qualifies the objects as adjacent to each other as a
matter of law.” (Pl. Supp. Br., Dec. 13, 2013, ECF No. 48 at 10). Even if this were
true per force – and none of the cases cited by Columbia Gas establish that it is –
the point is feckless because the Court’s holding, contrary to Columbia Gas’s
mischaracterization, does not rise and fall based on the definition of adjacency. The
Court’s holding, rather, turns on what FERC had “indicated previously” with
respect to whether a pipeline could be rerouted around an sizable obstacle and still
be classified as a “replacement.”
Recall that the Court drew FERC’s interpretation of the regulations relevant
to this case from a proposed rule intended to expedite pipeline reconstruction
caused by “a deliberate effort to disrupt the flow of natural gas,” i.e., terrorism. See
Emergency Reconstruction of Interstate Natural Gas Facilities Under the Natural
Gas Act, 68 Fed. Reg. 4120 (proposed Jan. 17, 2003) (to be codified at 18 C.F.R.
pt. 157). The proposed rule arose from an April 22, 2002 “technical conference to
consider whether to, or how to, clarify, expedite, and streamline permitting and
approvals for interstate pipeline reconstruction following a sudden unanticipated
service disruption.” Emergency Reconstruction, 68 Fed. Reg. at 4120.
Reviewing the existing authority that a blanket certificate holder such as
Columbia Gas might use in response to an emergency, FERC opined, “These
regulations [i.e., the regulations under which Columbia Gas claims automatic
authority to undertake the Line 1655 project] . . . do not appear to contemplate
mainline construction over an entirely different route as may be necessary to
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II.
Standard of Review
As Columbia Gas recognizes, “[a] proper Rule 59(e) motion [to alter or
amend a judgment] . . . must rely on one of three grounds: (1) an intervening
change in controlling law; (2) the availability of new evidence; or (3) the need to
correct clear error of law or prevent manifest injustice.” Lazaridis v. Wehmer, 591
F.3d 666, 669 (3d Cir. 2010) (per curiam).
Columbia Gas vacillates on the grounds for its motion (see Pl. Supp. Br.,
Dec. 13, 2013, ECF No. 48 (not stating grounds with particularity); Pl. Reply Br.,
circumvent the site of a disaster if immediate replacement is necessary before the
original site is again available.” Id. at 4122. FERC further explained that the
regulations under which Columbia Gas claims pre-authorization are intended to
meet gas companies’s need for “flexibility . . . to replace facilities where
construction of new facilities might spill over the original temporary workspace or
permanent right-of-way,” and do not provide authority for the “replacement of
facilities outside the existing right-of-way by the creation of an entirely new route
due to the need to circumvent an accident site.” Id. at 4123 n.20 (emphasis added).
In considering the dimensions the agency had in mind, it is worth
remembering that the “Ground Zero” site in Manhattan (9/11 being the terrorist
attack that likely prompted the conferences culminating in FERC’s proposed rule)
measures sixteen acres, a mere one-quarter of the quarter-mile distance Columbia
Gas seeks to move Line 1655. Dan Barry, New York Carries On, but Test of Its
Grit Has Just Begun, N.Y. Times, Oct. 11, 2001, at B1 (“A month later, the
extraordinary devastation of a 16-acre tract in Lower Manhattan has become
almost an accepted condition by a city turning its attention to war”). This is not to
say the physical damage wrought by 9/11 was not wider (indeed there was a
“restricted zone” surrounding the World Trade Center complex), but merely to
suggest FERC’s likely view at the time: that a quarter-mile relocation of pipeline
was not pre-authorized under the regulations cited by Columbia Gas.
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Jan. 14, 2014, ECF No. 54 at 2 (Columbia moves . . . based principally on the third
rationale); id. at 3 n.2 (“Columbia argues, in the alternative, that [FERC’s Nov. 22,
2013 footnote] is an intervening change in FERC regulations.”)), ultimately
deciding that straight-faced characterization FERC’s footnote as “controlling law”
is a forlorn hope and resting on the argument that the Court based its judgment on a
clear error of law.
III.
Discussion
Notwithstanding the landowner defendants’s vain attempts to argue
otherwise, it is clear that FERC would now have the Court hold that Columbia
Gas’s Line 1655 project is eligible for pre-authorization as a “replacement” of an
“eligible facility,” despite FERC’s pre- November 22, 2013 statements to the
contrary.
What effect under Fed. R. Civ. P. 59(e), then, should be given to FERC’s
about-face? Citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984), Columbia Gas asserts that FERC’s November 22, 2013 footnote
“is entitled to deference,” and “unequivocally establishes that the Court’s
interpretation of the term ‘eligible facility’ to include a limitation on distance is
incorrect.” (Pl. Supp. Br. at 10). Having committed clear error, argues Columbia
Gas, the Court should correct course.
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The Court disagrees. Had they read Decker v. Nw. Envtl. Def. Ctr.,133 S.Ct.
1326 (2013), an opinion cited by the Court in its October 24, 2013 memorandum,
Columbia Gas’s counsel would know that the relevant principle is Auer deference
(after Auer v. Robbins, 519 U.S. 452 (1997)), not Chevron deference. More
importantly, Auer deference is sometimes “inappropriate,” such as “when there is
reason to suspect that the agency’s interpretation ‘does not reflect the agency’s fair
and considered judgment on the matter in question,’” suspicion which “might
[arise] when the agency’s interpretation conflicts with a prior interpretation.”
Christopher v. SmithKline Beecham Corp., 132 S.Ct. 2156, 2166 (2012) (quoting
Auer, 519 U.S. at 462). Indeed “an agency’s interpretation of a statute or regulation
that conflicts with a prior interpretation is entitled to considerably less deference
than a consistently held agency view.” Thomas Jefferson Univ. v. Shalala, 512
U.S. 504, 515 (1994) (internal quotation marks omitted).
Had FERC’s prior interpretation been abandoned long ago, followed by
consistent adherence to the interpretation set forth in FERC’s November 22, 2013
footnote, more than minimal deference to the latter interpretation might be
warranted. But there is no indication that this is the case. Neither FERC nor
Columbia Gas points to evidence tending to show that FERC changed its
interpretation at any time prior to November 22, 2013, and despite Columbia Gas’s
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representation that it has “litigated this issue in other courts” (Oral Arg. Tr., Nov.
4, 2013, pg. 52), this Court is still waiting for evidence, if any, of how those courts
decided the issue in Columbia Gas’s (or any other companies’s) favor, which, at
least theoretically, could allow Columbia Gas to argue that FERC acquiesced in the
decisions of those Courts. In short, Columbia Gas adduces no evidence to rebut the
inference to be drawn from the circumstances – i.e., FERC’s November 22, 2013
footnote does not reflect the fair and considered judgment of the agency.
Under the circumstances, the Court is not convinced that it clearly erred.
Columbia Gas’s attack does not point to an actual error in reasoning behind the
Court’s judgment. Instead, Columbia Gas asserts that the Court should wholly
defer to an agency interpretation that – according to precedent that Columbia Gas
ignores – is properly due very little deference, if any beyond its power to persuade.
Accordingly, although FERC’s November 22, 2013 footnote provides a “possible
reading” of the relevant regulations, see Decker, 133 S.Ct. at 1337, it is not the
only possible reading, and almost by definition fails to establish that this Court
clearly erred in adopting a contrary construction.
The Court is not without humility. The United States Court of Appeals for
the Third Circuit – after considering the regulatory text, this Court’s memorandum,
and FERC’s November 22, 2013 footnote – may ultimately side with Columbia
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Gas. Nevertheless, in this procedural posture, the absence of clear error proffered
by Columbia Gas dictates that this Court should stand by its previous ruling.
IV.
Conclusion
For the foregoing reasons, the Court denies the motions of Columbia Gas to
alter or amend judgment.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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