ALLENTOWN – A religious order who alleged its rights to practice its faith were being infringed through construction of a natural gas pipeline and lost in federal court for lack of jurisdiction, have appealed their case to the U.S. Court of Appeals for the Third Circuit.
Transcontinental Gas Pipe Line Company is involved in a project to construct and operate a natural gas pipeline known as the Atlantic Sunrise Pipeline running through five states, including a portion of Lancaster County, Pennsylvania. The pipeline route crosses a piece of property owned by the Adorers of the Blood of Christ, and has been in operation for nearly three years.
The complaint alleged that the Adorers of the Blood of Christ is a “vowed religious order of Roman Catholic women whose religious practice includes protecting and preserving creation, which they believe is a revelation of God, the sacredness of which must be honored and protected for future generations” and that “the individually named plaintiffs are all Sisters of the Adorers.”
The plaintiffs claimed the construction and operation of the pipeline through land they own in Columbia, Pennsylvania would violate their free exercise of religion protected by Religious Freedom Restoration Act.
On March 31, 2015, Transco had filed an application with the Federal Energy Regulatory Commission under section 7(c) of the Natural Gas Act, 15 U.S.C. 717f(c), for authorization to construct and operate the pipeline.
On Feb. 3, 2017, FERC issued a “Certificate of Public Convenience and Necessity” authorizing Transco’s proposed route for the pipeline that would require use of the Adorers’ property. The FERC order granted Transco the right to take private property along the route of the pipeline by eminent domain if landowners such as the Adorers would not agree to voluntarily convey their land.
The Adorers refused to voluntarily convey their land, but lost that fight against Transco via a court order on Aug. 23, 2017, which granted possession of the Adorers’ property to Transco.
Schmehl also outlined the history of extensive litigation between Transco and the Adorers, both in the condemnation action related to the Adorers’ property and in a previous action brought by the Adorers seeking injunctive relief for alleged violations of the RFRA.
The Court previously dismissed the Adorers initial RFRA claim, finding it lacked jurisdiction to hear the Adorers’ claims because they should have been brought in front of FERC.
The U.S. Court of Appeals for the Third Circuit affirmed the Court’s ruling in a precedential decision in which it concluded that the NGA contained a “highly reticulated” review process that required the Adorers to exhaust their remedies before FERC and then seek review in a federal court of appeals, which would have “exclusive” jurisdiction to “affirm, modify, or set aside” the FERC certificate of public necessity (“Adorers I”). The Adorers sought review of the Third Circuit’s decision, and the Supreme Court declined to grant them a writ of certiorari.
The Adorers then filed the instant action, in which they again claim violations of the RFRA, alleging that FERC’s decision to approve the project route through their property violated their religious beliefs because it “forced them to use their own land, which they hold in sacred trust as God’s creation, to facilitate the extraction, transportation and use of fossil fuels…”
The instant action was nearly identical to the previous action filed by the Adorers for alleged RFRA violations and dismissed by this Court, except that the Adorers now sought monetary damages as opposed to injunctive relief.
U.S. District Court for the Eastern District of Pennsylvania Judge Jeffrey L. Schmehl issued the ruling dismissing the plaintiff’s case on Sept. 30.
Per Schmehl, the RFRA provides that: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except…government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
In its motion to dismiss for lack of subject matter jurisdiction, Transco again argued that under the NGA, this Court lacked subject matter jurisdiction over the Adorers’ RFRA claims. Schmehl agreed.
“As in Adorers I, the Adorers do not dispute that they not only failed to apply for a rehearing before FERC but failed to present their RFRA claims in any manner to the FERC, and ultimately to the appropriate Court of Appeals, which would be the D.C. Circuit. This holding from our Court of Appeals would seem to foreclose any RFRA claim on the part of the Adorers. However, plaintiffs here argue that because they are seeking monetary damages in the instant action (as opposed to the injunctive relief they sought in Adorers I) and that money damages are not available through FERC’s administrative process, this Court has subject matter jurisdiction over this case,” Schmehl stated.
“I find that simply seeking money damages as opposed to injunctive relief does not cure the jurisdictional defect in this matter. First, as set forth in Adorers I, ‘FERC may hear any claim raised before it – even potential violations of federal law.’ There is nothing to prevent FERC from hearing a claim for money damages under the RFRA if said claim was properly raised by an affected party. In fact, FERC has required a pipeline company to pay money damages in the past.”
Schmehl said that FERC never had an opportunity to make the determination of whether or not to award RFRA damages, because plaintiffs completely failed to participate in the NGA’s process – and that the RFRA does not guarantee an award of monetary damages if a violation is found.
According to Schmehl, if the plaintiffs had properly challenged the FERC order and been successful, it could have led to a re-route of the pipeline around plaintiffs’ property and that such an action “would have been the more appropriate relief for plaintiffs’ religious objections to the project than the receipt of money damages.”
Schmehl labeled the complaint’s allegations as “a collateral attack on the decisions made by FERC in issuing the FERC order, and the plaintiffs’ challenge remains subject to the exclusive jurisdiction scheme set forth in the NGA, no matter what type of relief they are seeking.”
“Here, allowing a suit for monetary damages under RFRA based on the claim that the route of the pipeline – which plaintiffs did not challenge despite multiple opportunities to do so – should entitle plaintiffs to money damages in addition to the just compensation they received in the condemnation action is inconsistent with the process Congress enacted in passing the NGA,” Schmehl said.
“Accordingly, plaintiffs’ RFRA claim is a collateral attack on the FERC order and must be dismissed. For all the foregoing reasons, I find this Court lacks jurisdiction over plaintiffs’ complaint. Therefore, defendant’s motion to dismiss will be granted, and plaintiffs’ complaint will be dismissed with prejudice.”
The plaintiffs announced their intention to appeal Schmehl’s ruling to the Third Circuit on Oct. 13.
U.S. Court of Appeals for the Third Circuit case 21-2898
U.S. District Court for the Eastern District of Pennsylvania case 5:20-cv-05627
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com