PENNEAST PIPELINE COMPANY, LLC v. A PERMANENT EASEMENT OF 0.27 ACRES + AND A TEMPORARY EASEMENT OF 0.53 ACRES + IN WILLIAMS TOWNSHIP, NORTHAMPTON COUNTY, PENNSYLVANIA, TAX PARCEL NO. P9-6-4A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENNEAST PIPELINE COMPANY, LLC,

Plaintiff,

v. CIVIL ACTION

NO. 18-505

PERMANENT EASEMENT OF 0.06 ACRES IN

MOORE TOWNSHIP, NORTHAMPTON

COUNTY, PENNSYLVANIA, TAX PARCEL

NO. J5-3-3, et al,

Defendants.

PENNEAST PIPELINE COMPANY, LLC,

Plaintiff,

v. CIVIL ACTION

NO. 18-507

PERMANENT EASEMENT OF 0.98 ACRES

AND A TEMPORARY EASEMENT OF 1.61

ACRES IN LOWER NAZARETH TOWNSHIP,

NORTHAMPTON COUNTY, PENNSYLVANIA,

TAX PARCEL NO. L 7-6-10, et al,

Defendants.

PENNEAST PIPELINE COMPANY, LLC,

Plaintiff,

v. CIVIL ACTION

NO. 18-508

PERMANENT EASEMENT OF 0.75 ACRES

AND A TEMPORARY EASEMENT OF 1.01

ACRES IN LOWER SAUCON TOWNSHIP,

NORTHAMPTON COUNTY, PENNSYLVANIA,

TAX PARCEL NO. N8-14-9, et al,

Defendants.

PENNEAST PIPELINE COMPANY, LLC,

Plaintiff,

v. CIVIL ACTION

NO. 18-510

PERMANENT EASEMENT OF 0.33 ACRES

AND A TEMPORARY EASEMENT OF 0.68

ACRES IN LOWER NAZARETH TOWNSHIP,

NORTHAMPTON COUNTY, PENNSYLVANIA,

TAX PARCEL NO. K7-23-2, et al,

Defendants.

PENNEAST PIPELINE COMPANY, LLC,

Plaintiff,

v. CIVIL ACTION

NO. 18-518

PERMANENT EASEMENT OF 0.98 ACRES

AND TEMPORARY EASEMENT OF 1.45

ACRES IN MOORE TOWNSHIP,

NORTHAMPTON COUNTY, PENNSYLVANIA,

TAX PARCEL NO. H5-17-1, et al,

Defendants.

PENNEAST PIPELINE COMPANY, LLC, CIVIL ACTION

NO. 18-524

Plaintiff,

v.

PERMANENT EASEMENT OF 0.59 ACRES IN

BETHLEHEM TOWNSHIP, NORTHAMPTON

COUNTY, PENNSYLVANIA, TAX PARCEL

NO. N8-8-3, et al,

Defendants.

PENNEAST PIPELINE COMPANY, LLC,

Plaintiff,

v. CIVIL ACTION

NO. 18-527

PERMANENT EASEMENT OF 1.29 ACRES

AND TEMPORARY EASEMENT OF 1.92

ACRES IN WILLIAMS TOWNSHIP,

NORTHAMPTON COUNTY, PENNSYLVANIA,

TAX PARCEL NO. P9-7-13, et al,

Defendants.

PENNEAST PIPELINE COMPANY, LLC,

Plaintiff,

CIVIL ACTION

v. NO. 18-530

PERMANENT EASEMENT OF 0.27 ACRES

AND TEMPORARY EASEMENT OF 0.53

ACRES IN WILLIAMS TOWNSHIP,

NORTHAMPTON COUNTY, PENNSYLVANIA,

TAX PARCEL NO. P9-6-4A, et al,

Defendants.

PENNEAST PIPELINE COMPANY, LLC,

Plaintiff,

v. CIVIL ACTION

NO. 18-532

PERMANENT EASEMENT OF 2.88 ACRES

AND TEMPORARY EASEMENT OF 3.80

ACRES IN WILLIAMS TOWNSHIP,

NORTHAMPTON COUNTY, PENNSYLVANIA,

TAX PARCEL NO. P9-12-30, et al,

Defendants.

MEMORANDUM OPINION

Schmehl, J. /s/ JLS September 17, 2019

I. INTRODUCTION

Plaintiff, PennEast Pipeline Company, LLC (“PennEast”), is involved in

a project to construct and operate a natural gas pipeline from northern Pennsylvania to

New Jersey, eastern and southern Pennsylvania and surrounding states. Before the Court

are the Motions for Partial Summary Judgment of PennEast in the nine above-captioned

cases. Defendant/landowners Jane Snyder, Lorraine C. Mineo, Bruce R. Petrie and

Ginger L. Petrie (“Petrie”), Marian M. Buskirk, City of Easton, Ned D. Heindel, Linda H.

Heindel, Alan D. Kirby, Jr., and Patricia Spaziani (“Heindel”) and Ned. D. and Linda H.

Heindel Living Trust (“Heindel Trust”) all filed oppositions to PennEast’s Motions for

Partial Summary Judgment. In addition, Defendant/interest holders Northampton County

and Williams Township filed oppositions to the Motions. PennEast filed replies, and

argument was held on said motions.

For the following reasons, I find that PennEast has the substantive right to condemn

the properties in question and its Motions for Partial Summary Judgment are granted.

II. LEGAL STANDARD

Summary judgment is appropriate if there is no genuine dispute as to any material

fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. Proc.

56(c). “A motion for summary judgment will not be defeated by ‘the mere existence’ of

some disputed facts, but will be denied when there is a genuine issue of material fact.”

Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is “material” if

proof of its existence or non-existence might affect the outcome of the litigation, and a

dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson, 477 U.S. at 248.

In undertaking this analysis, the court views the facts in the light most favorable

to the non-moving party. “After making all reasonable inferences in the nonmoving

party’s favor, there is a genuine issue of material fact if a reasonable jury could find for

the nonmoving party.” Pignataro v. Port Auth. of N.Y. and N.J., 593 F.3d 265, 268 (3d

Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)).

While the moving party bears the initial burden of showing the absence of a genuine

issue of material fact, meeting this obligation shifts the burden to the non-moving party

who must “set forth specific facts showing that there is a genuine issue for trial.”

Anderson, 477 U.S. at 250.

III. FACTUAL BACKGROUND

On September 24, 2015, PennEast filed an application with the FERC for a

Certificate Order for its Project to construct new pipeline facilities in Pennsylvania and

New Jersey. (Compl. at ¶ 12.) The FERC evaluated the public need for the Project and

completed a review of environmental impacts and operational considerations before

issuing the FERC Order authorizing the Project. (Id.) Throughout the FERC certification

process, the public was notified about the Project and was provided with the opportunity

to participate in the FERC’s administrative process, including through the following

notices:

(a) the FERC issued a Notice of Intent to Prepare an Environmental

Impact Statement for the Planned PennEast Project, Request for

Comments on Environmental Issues, and Notice of Public Scoping

Meetings on January 13, 2015, which was published in the Federal

Register and mailed to interested parties including federal, state, and

local officials, agency representatives, environmental and public

interest groups, Native American tribes, local libraries and

newspapers, and affected property owners (i.e., landowners crossed or

adjacent to the pipeline facilities or within 0.5 miles of a compressor

station), and other stakeholders who had indicated an interest in the

Project;

(b) PennEast filed an Application for Certificate of Public Convenience

and Necessity and Related Authorizations, and FERC issued notice of

PennEast’s application on October 15, 2015;

(c) FERC published a Draft Environmental Impact Statement (“EIS”) on

July 22, 2016 and invited public comments on the Draft EIS; and

(d) FERC issued a Notice announcing the availability of the final EIS on

April 7, 2017, which was published in the Federal Register on April

14, 2017 and mailed to interested parties and stakeholders.

(Id. at ¶ 14.)

The FERC also invited the public to participate in scoping meetings for the

Project and reviewed and considered hundreds of public comments received from

interested parties, including federal, state, and local governmental agencies, elected

officials, environmental and public interest groups, and potentially affected landowners

before issuing its FERC Order. (Id. at ¶ 15.) The FERC completed its extensive

assessment and, in an order dated January 19, 2018, concluded that there is a need for the

PennEast Project and that the Project will serve the public interest. (Id. at ¶ 17; England

Decl. ¶ 6.)

Specifically, the FERC concluded that “[b]ased on the benefits the project will

provide to the shippers, the lack of adverse effects on existing customers, other pipelines

and their captive customers, and effects on landowners and surrounding communities, we

find, consistent with the Certificate Policy Statement1 and section 7 of the NGA, that the

public convenience and necessity requires approval of PennEast’s proposal, subject to the

conditions discussed [in the FERC Order].” (See Compl. Ex. B at ¶ 40.) On May 30,

2018, the FERC issued an order denying requests for rehearing for the limited purpose of

further consideration (the “Tolling Order”) and denying requests for rescission of the

Tolling Order.

The Rights of Way are located on the Properties identified in each Complaint and

are necessary to construct, install, operate, and maintain the pipeline facilities approved

in the FERC Order (Id. at ¶ 2 (e), (f), 19; see also England Decl. at ¶ 8.) The Properties

identified in each Complaint are located within the corridor approved for the

construction, operation, and maintenance of the PennEast pipeline by the FERC Order,

based upon alignment sheets that were reviewed and approved by the FERC. (England

Decl. at ¶ 7.) The FERC reviewed and approved these Rights of Way prior to issuing the

FERC Order. (Compl. at ¶ 21.) Before issuing the Order, the FERC reviewed extensive

information and specifically considered the impact on Landowners and communities that

might be affected by the Project, concluded that PennEast has taken steps to minimize

adverse impacts on landowners and communities, and determined that the Project should

move forward. (Id. at ¶ 22.)

PennEast retained Western Land Service (“WLS”) to facilitate acquisition of the

Rights of Way needed for the PennEast Pipeline Project. (Allison Decl. at ¶ 4.) Over a

period of more than three years, WLS Land Agents communicated with Landowners

multiple times to discuss PennEast’s desire to access the Property to conduct surveys and

1 See Certificate of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227 (1999), clarified, 90

FERC ¶ 61,128 (2000), further clarified, 92 FERC ¶ 61,094 (2000).

other activities, as well as to discuss PennEast’s plan to acquire the Rights of Way

necessary for the Project. (Allison Decl. at ¶¶ 8, 13, 16.) Over the course of that time, the

Land Agents documented each contact with Landowners immediately after the contact

was made. (Id. at ¶ 14.) Records show that WLS had contact with or attempted contact

with the Landowners numerous times to discuss PennEast’s plans to acquire an easement

over the Landowners’ Property for the PennEast Project. (Id. at ¶ 16.) Despite PennEast’s

efforts to acquire the Rights of Way by agreement with the Landowners, PennEast has

been unable to do so. (Allison Decl. at ¶ 17.)

PennEast made its most recent offer to acquire the Rights of Way, which exceeded

$3,000.00, on or about January 20, 2018. (Id. at ¶ 18.) The Landowners have not accepted

PennEast’s offer. (Id. at ¶ 19.) PennEast has been unable to acquire by contract, and

unable to agree with the Landowners concerning the compensation to be paid for the

necessary Rights of Way to construct, operate, and maintain the PennEast Project. (Id. at

¶ 20.)

Construction timing is critical, and construction delays will result in lost contracts,

the inability to comply with FERC requirements, and substantial financial losses that

cannot be recouped. (England Decl. at ¶¶ 12-13.). 26. The FERC Order requires that

construction be completed, and the Project be in service within two years from the date of

the Order. (See Compl. Ex. B.)

IV. DISCUSSION

The Natural Gas Act permits the holder of a certificate of public convenience and

necessity issued by the FERC to use eminent domain to acquire rights of way necessary

to construct, operate and maintain a project as approved by the FERC Order. 15 U.S.C. §

717f(h). Courts have held that the NGA authorizes a party to exercise the federal power

of eminent domain if it meets the three-prong test set forth in the statute:

1) The party must hold a FERC Certificate of Public Convenience and Necessity;

2) The party has not been able to acquire the property rights required to

construct, operate and maintain a FERC-approved pipeline by agreement with

the landowners; and

3) The value of the property sought to be condemned is more than $3,000.

Columbia Gas Transmission, LLC v. 1.01 Acres, 768 F.3d 300, 304 (3d Cir. 2014);

Steckman Ridge GP, LLC v. An Exclusive Natural Gas Storage Easement Beneath 11.078

Acres, 2008 WL 4346405, at *12-*13 (W.D. Pa. Sept. 19, 2008); Alliance Pipeline L.P.

v. 4.360 Acres of Land, 746 F.3d 362, 364 (8th Cir. 2014); Millennium Pipeline Co.,

L.L.C. v. Certain Permanent and Temporary Easements, 777 F.Supp.2d 475, 479 (W.D.

N.Y. 2011); aff’d 552 F.App’x 37 (2d Cir. 2014).

In the above matters, there is no dispute, and therefore no genuine issue of

material fact that PennEast holds a FERC Certificate of Public Convenience and

Necessity, that it has been unable to acquire the property rights in question to construct,

operate and maintain the FERC-approved pipeline by agreement with the landowners,

and that the value of the properties in question is greater than $3,000. None of the

Landowners or Interest holders argue that PennEast has not met the three-pronged test set

forth in the Natural Gas Act allowing it to use eminent domain. However, the

Landowners oppose the entry of partial summary judgment in this matter and present

several arguments in opposition to PennEast’s exercise of eminent domain. Specifically,

Landowners Snyder and Buskirk argue that PennEast failed to comply with Federal Rule

Civil Procedure 71.1 as it has failed to deposit just compensation and failed to properly

value their properties. They also argue that PennEast has failed to comply with all

provisions of the FERC Order, and Snyder argues that PennEast has failed to comply

with Fed.R.Civ.P. 71.1 because it has failed to adequately identify her property to be

condemned.

As to the remaining Landowners and Interest holders, they argue that the Project

does not satisfy the “public use” requirement, the size and location of the taking is

unreasonable, PennEast has not negotiated in good faith, and the proposed pipeline does

not follow the least intrusive route. In addition, the City of Easton argues that a taking of

its property in question violates the Prior Public Use Doctrine because the property is

already being used as a public park. Interest holders Northampton County and Williams

Township, as well as the Heindel Landowners and the Heindel Trust, also argue that their

property is subject to a pre-existing conservation easement and permitting condemnation

of a portion of that easement would defeat the purpose of the easement. As discussed

below, I find all these arguments to be unpersuasive. Neither Landowners nor Interest

holders can establish any genuine issue of material fact as to the three conditions set forth

in the Natural Gas Act that must be met prior to the exercise of eminent domain by

PennEast; therefore, PennEast is entitled to the entry of partial summary judgment in this

matter.

A. FEDERAL RULE OF CIVIL PROCEDURE 71.1

None of the landowners dispute the fact that PennEast has a FERC certificate,

has been unable to acquire the rights of way that it needs to construct its pipeline, and that

the value of the property in question is over $3,000. Rather, Snyder and Buskirk argue

that PennEast has failed to comply with Federal Rule of Civil Procedure 71.1.

Specifically, these landowners argue that PennEast failed to comply with Fed.R.Civ.P.

71.1(j)(1) which requires a plaintiff to deposit with the court any money required by law

as a condition to the exercise of eminent domain. Further, Snyder argues that PennEast

has failed to provide a description of the property to be acquired in violation of

Fed.R.Civ.P. 71.1(c)(2)(C) and (D). Both of these arguments fail.

First, as to the argument that PennEast has failed to pay adequate security, Rule

71.1(j)(1) states that a “plaintiff must deposit with the court any money required by law

as a condition to the exercise of eminent domain.” However, the Rule does not require

PennEast to deposit money into the court before a condemnation of the landowners’

properties is authorized, nor do the landowners cite to a case that supports this contention.

To the contrary, once this Court determines that PennEast is authorized to exercise

eminent domain, PennEast will then be required to deposit security in an amount set by

the Court.

Snyder and Buskirk also take issue with PennEast’s method of valuing the

properties. Specifically, the Landowners disagree with PennEast’s use of the fair market

value of the rights of way to determine their appraised value. However, this argument is

inappropriate at this time, as the only issue currently before the Court is whether

PennEast should be permitted to exercise eminent domain powers under the Natural Gas

Act. Any issue of valuation of the properties will be addressed at a later stage of these

proceedings.

As part of her argument that PennEast failed to comply with Fed.R.Civ.P. 71.1,

Snyder also argues that PennEast failed to provide an adequate description of the

property to be acquired. Federal Rule of Civil Procedure 71.1(c)(2)(C) and (D) requires

PennEast to provide “a description sufficient to identify the property; [and] . . . the

interests to be acquired.” Snyder claims that the description of the property contained in

PennEast’s Complaint is deficient because it lacks a metes and bounds description of the

parcels at issue, uses outdated photographs to identify the property, and does not attach a

surveyed plot plan showing the property to be condemned. Snyder further argues that

PennEast’s plans lack any description of distances in width or length of the easements

sought and the acreage is approximated.

“It is well established that a condemnation action under the NGA requires no

more than a description of the tract of land through which the pipeline will run and a plat

showing the location of the easement, both of which are sufficient for identification.” In

re Algonquin Nat. Gas Pipeline Eminent Domain Cases, 2015 WL 10793423, at *8

(S.D.N.Y. Sept. 18, 2015) (citing Fed.R.Civ.P. 71.1(c)(2)(C)-(D); East Tenn. Natural

Gas Co. v. Sage, 361 F.3d 808, 830 (4th Cir. 2004)). Further, courts have found that a

condemning party is not “required to conduct a full survey with a metes and bounds

description and plat drawn by a registered land surveyor showing the property to be

taken,” Sabal Trail Transmission, LLC v. 7.72 Acres in Lee Cty., Alabama, 2016 WL

3450827, at *3 (M.D. Ala. June 20, 2016), nor is there a requirement to describe the

easement in sufficient detail to allow it to be recorded in local land records. Columbia

Gas, 2014 WL 2960836, at *6-7.

Rather, all Rule 71.1 requires is a “short and plain statement” of the interest to be

acquired. Fed.R.Civ.P. 71.1(c)(2)(C)-(D). PennEast identified Snyder’s properties by tax

parcel number and specifically identified the permanent and temporary right of way

acreage with plat maps showing the locations of the easements. See Compl., Ex. A. This

information is sufficient to satisfy the short and plain statement requirement of Rule 71.1,

and therefore, Snyder’s argument must fail.

B. Failure to Comply with the Conditional FERC Order

Several landowners argue that because the FERC order for the Project

incorporated many conditions, some of which have not yet been met, PennEast is not

permitted to exercise eminent domain. However, the NGA does not contain a requirement

that the holder of a FERC certificate satisfy all conditions of said certificate prior to the

exercise of eminent domain.

The FERC Order provides, inter alia, “we grant the requested authorizations,

subject to the conditions discussed herein.” (Compl, Ex. B, p. 1, ¶ 2.) Landowners argue

that this language should be interpreted to mean that PennEast must obtain all

environmental and other approvals prior to condemning any rights of way. However, this

contention is incorrect. Multiple courts in this jurisdiction and elsewhere have held that a

FERC order that contains conditions that must be met before pipeline construction can

commence does not prohibit the exercise of eminent domain, nor does the situation where

a pipeline has yet to obtain the necessary permits. See Transcontinental Gas Pipe Line

Co., LLC v. Permanent Easement for 2.14 Acres, 2017 WL 3624250, at *6 (E.D. Pa.

Aug. 23, 2017), aff’d sub nom, Transcon. Gas Pipe Line, LLC v. Permanent Easements

for 2.14 & Temp. Easements for 3.59 Acres in Conestoga Twp., Lancaster Cty.,

Pennsylvania, 907 F.3d 725 (3d Cir. 2018); Constitution Pipeline Co., LLC v. A

Permanent Easement for 0.67 Acres & Temp. Easement for 0.68 Acres in Summit,

Schoharie Cty., N.Y., 2015 WL 1638477, at * 2 (N.D.N.Y. Feb. 21, 2015) (rejecting

argument that pipeline company could not exercise eminent domain until it had obtained

certain permits required prior to construction as conditions of the certificate order

because the FERC had not expressly made such permits a condition to exercising eminent

domain); PennEast Pipeline Co., supra, 2018 WL 6304192, at *7-9 (finding that

approvals are not necessary for an order that PennEast has the authority to condemn);

Columbia Gas Transmission, LLC v. 370.393 Acres, 2014 WL 5092880, at *4 (D. Md.

Oct. 9, 2014) (rejecting argument that pipeline company had failed to comply with

certain conditions listed in the FERC certificate and finding that claims that a company is

not in compliance with the FERC certificate must be brought to the FERC, not the court);

Portland Natural Gas Transmission Sys. v. 4.83 Acres, 26 F.Supp.2d 332, 336 (D.N.H.

1998) (“Compliance with FERC conditions cannot be used as a defense to the right of

eminent domain and cannot be cited to divest the court of the authority to grant

immediate entry and possession to the holder of a FERC certificate); Tenn. Gas Pipeline

Co. v. 104 Acres of Land, 749 F.Supp. 427, 433 (D.R.I. 1990) (holding that

“requirements in the FERC order arise after ownership of the rights of way are obtained

and do not operate as a shield against the exercise of eminent domain power”). Further, in

a New Jersey case involving PennEast and the very same pipeline at issue in the instant

matters, The Honorable Brian R. Martinotti found that the conditions attached by the

FERC to PennEast’s Certificate of Public Convenience and Necessity did not undermine

the finality of the Certificate under 717f(e) and permitted PennEast to exercise eminent

domain power. In Re PennEast Pipeline Company, LLC, 2018 WL 6584893, at * 18

(D.N.J. Dec. 14, 2018).

The FERC certificate in question does, in fact, contain prerequisite conditions,

some of which remain unmet at this time. However, there is no authority to support the

Landowners’ proposition that PennEast’s exercise of eminent domain is prohibited until

such time as the conditions in the FERC certificate are met. Absent any such caselaw or

precedent to support this position, I will not order such an extreme outcome and cause

undue delay. It is true that there are conditions in the FERC Certificate that PennEast will

need to meet prior to commencing actual construction of the pipeline, but the fulfillment

of these conditions is not a prerequisite to the exercise of eminent domain.

C. Alleged Due Process Violations

Next, the Landowners and Interest holders argue that due process violations exist

because no Court has yet heard their objections and defenses to PennEast’s proposed

taking of their properties. Specifically, these individuals take issue with the FERC

determination that these takings are for a public purpose, with the reasonableness of the

size and location of the proposed rights-of-way, whether the proposed rights-of-way are

the least intrusive route through their properties, and whether PennEast conducted itself

and its negotiations in good faith. The Landowners argue that unless these issues are

addressed by a court, they will be deprived of their due process rights.

These claims of alleged due process violations are actually attacks on the FERC

order itself, disguised as constitutional claims. It is widely accepted that the validity of a

FERC Order can only be challenged in front of the FERC, and then in the United States

Court of Appeals for the District of Columbia Circuit. It is important that this precedent

be followed so large pipeline projects cannot be challenged in many forums, and a sole

final arbiter can be established for the decisions. In Tennessee Gas Pipeline Co. v. 104

Acres of Land More or Less, 749 F.Supp. 427 (D.R.I. 1990), the court set forth the

limitations of a federal district court in reviewing FERC Certificates of Public

Convenience and Necessity pursuant to the Natural Gas Act. It stated:

United States District Courts have a limited scope of review under Section

7(h) of the Natural Gas Act. Disputes over the reasons and procedure for

issuing certificates of public convenience and necessity must be brought to

the Federal Energy Regulatory Commission for hearing. 15 U.S.C. §

717f(b). The District Court's role is to evaluate the scope of the certificate

and to order condemnation of property as authorized in the

certificate. See Williams Natural Gas Co. v. Oklahoma City, 890 F.2d 255,

262 (10th Cir.1989)(“Judicial review ... is exclusive in the courts of

appeals once the FERC certificate issues.”), cert. denied, 497 U.S. 1003,

110 S.Ct. 3236, 111 L.Ed.2d 747 (1990); Transcontinental Gas Pipe Line

Corp. v. 118 Acres of Land, 745 F.Supp. 366 (E.D.La.1990)(“review of

FERC orders are to be made only to United States Circuit Courts of

Appeal”). District Courts, therefore, are limited to jurisdiction to order

condemnation of property in accord with a facially valid certificate.

Questions of the propriety or validity of the certificate must first be

brought to the Commission upon an application for rehearing and the

Commissioner's action thereafter may be reviewed by a United States

Court of Appeals.

Id. at 430. See also Steckman Ridge GP, LLC v. An Exclusive Nat. Gas Storage Easement

Beneath 11.078 Acres, 2008 WL 4346405, at *4 (W.D. Pa. Sept. 19, 2008) (“Under the

statutory framework, there is no appeal of a FERC decision save to the appropriate Court

of Appeals. Disputes as to the propriety of FERC’s proceedings, findings, orders, or

reasoning must be brought to FERC by way of request for rehearing. Appeals may

thereafter be brought before a U.S. Court of Appeals only.”) Any challenge to the

substance and/or validity of the FERC order belongs in front of FERC. “The district

court’s function under the statute is not appellate, but rather, to provide for enforcement.”

Sabal Trail Transmission, LLC v. +/- 0.14 Acres of Land, 2016 WL 3189010 at *2 (M.D.

Fl. June 8, 2016).

Clearly, abundant case law holds that the jurisdiction of this court in this type of

proceeding is to order condemnation only. The Landowners and Interest holders have

failed to cite any case that supports their proposition that this Court has jurisdiction to

independently address the validity or constitutionality of the FERC order. Therefore, this

Court lacks the jurisdiction to address any sort of attack on the FERC order itself,

constitutional or otherwise.

Further, the specific collateral attack that is presented here, i.e., that the FERC

order does not serve a public purpose, has been rejected by other courts. See Constitution

Pipeline Co., LLC v. A Permanent Easement for 1.52 Acres, 2015 WL 12556149, at *3

(N.D.N.Y. Feb. 26, 2015) (“[D]efendants argue that the FERC Order does not support a

public purpose…plaintiff correctly points out that once a FERC certificate is issued,

judicial review of the FERC certificate itself is only available in the circuit court.”). To

the extent the Landowners and Interest holders are arguing that the process by which

FERC granted the certificate is deficient, that type of attack has also been rejected. See

Tenn. Gas Pipeline Co. v. 104 Acres of Land, 749 F.Supp. at 430 (finding that disputes

over the procedures for issuing certificates of public convenience and necessity must be

brought to the FERC for rehearing, and thereafter to a federal court of appeals).

Landowners and Interest holders also argue that the size and location of the taking

is unreasonable and that the route taken is not the least intrusive route. These arguments

also must fail, as they too are improper collateral attacks on the FERC order itself.2

2 Landowners also state that PennEast has not fulfilled its obligation to negotiate in good faith. However,

no party actually argues this issue in their brief. The most discussion that can be found regarding this issue

is a fleeting statement that there is a factual question as to the “actions of the Plaintiff during the

negotiation period,” but no further argument. Clearly, this type of unsupported factual allegation is

insufficient to defeat PennEast’s motion for summary judgment.

Furthermore, the Landowners clearly received adequate due process in front of

the FERC. It is undisputed that the FERC conducted a thorough review process regarding

this pipeline that lasted for years and involved extensive public participation, including

thousands of pages of written submittals from the public. The FERC held a pre-

deprivation hearing and the interested parties requested a rehearing, which was denied

pursuant to the FERC tolling order. Part of the FERC’s review process included

reviewing several alternative routes, and the environmental impact of each, and allowed

for a period of public comment. After this review and public comment, the FERC found

the route in question to be in the public interest. Clearly, the FERC addressed and

reviewed the landowners’ concerns regarding the intrusiveness, and the size and location

of the route during this review. If there were problems, issues, violations, or inadequacies

in the FERC Order, the proper procedure would be to appeal the order itself to the United

States Court of Appeals for the D.C. Circuit. Accordingly, adequate due process was

provided to the Landowners and Interest holders in this matter.

D. Conservation Easement/Prior Public Use Doctrine

In case numbers 18-510, 18-527 and 18-530, the property which PennEast seeks

to condemn is subject to county and/or township conservation easements and restrictive

covenants. Accordingly, Northampton County, the record owner of the relevant

conservation easements, Williams Township, the holder of additional conservation

easements, and the Heindels and the Heindel Trust, owners of properties that are

encumbered by the Northampton County and Williams Township conservations

easements, object to PennEast’s condemnation of the relevant rights of way. Further, in

case number 18-524, the City of Easton has objected to PennEast’s exercise of eminent

domain as the owner of a recreational tract of land that is currently used as a park over

which PennEast seeks to gain an easement. These parties object to the proposed taking

based upon the fact that the taking would conflict with the conservation easements and

based upon the Prior Public Use Doctrine.

The conservation easement at issue in 18-510 is found in a “Deed of Agricultural

Easement” dated December 31, 1997. Compl., Ex. D. This easement prohibits all

industrial and commercial activities in the easement area, and states that the property is to

be used solely for commercial purpose for stocks, livestock and livestock products. Id.

The conservation easement at issue in 18-527 is found in a “Deed of Conservation

Easement and Declaration of Restrictive Covenants” dated November 10, 2010, and the

conservation easement at issue in 18-530 is found in a “Deed of Conservation Easement

and Declaration of Restrictive Covenants” dated December 14, 2009. Compl., Exs. C and

E. Paragraph 4 of both of these documents states that all industrial or commercial

activities are prohibited in the area, including excavation or removal of rocks, minerals,

gravel, topsoil or other similar materials. Id. In addition, Williams Township is the holder

of a conservation easement on lands located at Hexenkopf Road in Williams Township,

Northampton County, Pennsylvania.

In opposing PennEast’s exercise of eminent domain, these easement holders first

argue that the condemnation of the properties at issue would defeat the purposes of the

easements themselves. As discussed above, this is a collateral attack on the FERC Order

that this Court lacks the jurisdiction to address. Further, a review of the FERC Order

shows that these easements were clearly taken into consideration by the FERC in issuing

the Certificate to PennEast. Specifically, the FERC Order stated:

Several comments were received discussing potential impacts on protected

lands, including conservancies and lands held in trust. In addition, the

EPA recommends that additional measures be taken to monitor whether

protected land impacted by new easements lose quality and value to

conservancy patrons. Impacts on conservation easements are addressed

fully in section 4.7.2 of the final EIS. There are no changes expected in the

conservation status of public lands crossed by the project, including state

game lands and state highways and maintenance areas. No changes are

expected in the conservation status of private lands crossed by the project

in Pennsylvania. . .

Compl, Ex. B, p. 58, ¶ 158. Accordingly, even if this court had jurisdiction to address this

argument, I would find it to be unsuccessful. FERC took the conservation easements and

their purposes into consideration and took steps in the Order and the final Environmental

Impact Statement to address them. Additionally, there appears to be no factual reason

why the pipeline could not go under lands that are restricted due to a conservation

easement. Accordingly, this argument must fail.

In addition, the City of Easton argues that the condemnation of its property would

be a “clear violation of the Prior Public Use Doctrine, since [it is] already being used for

the benefit of the public.” ECF No. 20, p. 7. However, the Prior Public Use Doctrine does

not apply to this matter.

First, the only cases cited by the City in support of this doctrine are from New

York and New Mexico. The City cites to no Pennsylvania state or federal law, nor have I

located any, that applies or discusses the prior public use doctrine.

Secondly, the Natural Gas Act, which gives PennEast the power of eminent

domain, is a federal law which preempts virtually any state law that might apply.

“Congress intended to occupy the field to the exclusion of state law by establishing

through the NGA a comprehensive scheme of federal regulation of all wholesales of

natural gas in interstate commerce.” Dominion Transmission, Inc. v. Summers, 723 F.3d

238, 243 (D.C.Cir.2013) (internal quotation marks omitted). “[S]tate and local regulation

is preempted by the NGA to the extent they conflict with federal regulation or would

delay the construction and operation of facilities approved by” FERC. Id. at 245 (citing

Dominion Transmission, 141 F.E.R.C. at 62, 298.) Accordingly, to the extent the Prior

Public Use Doctrine may apply in this instance, it is preempted by the Natural Gas Act

and the City’s argument must fail.3

V. CONCLUSION

For all of the reasons set forth above, PennEast meets the test set forth by the

Natural Gas Act to exercise the federal power of eminent domain. Landowners and

Interest holders have failed to present a genuine issue of material fact as to PennEast’s

right to condemn. Accordingly, PennEast’s Motions for Partial Summary Judgment are

granted. Appropriate orders will follow.

3 I am aware of the recent decision of the United States Court of Appeals for the Third Circuit regarding

this same PennEast pipeline which held that the sovereign immunity enjoyed by the States pursuant to the

Eleventh Amendment bars PennEast’s condemnation suits as to 42 specific properties in New Jersey that

are owned, at least in part, by the State of New Jersey or various arms of the State. In re: PennEast Pipeline

Company, LLC, ___ F.3d ___, 2019 WL 4265190 (3d Cir Sept. 10, 2019). However, the instant matter is

easily distinguishable from those cases addressed by the Third Circuit because none of the properties that

PennEast seeks to condemn here in the Eastern District of Pennsylvania are owned by the Commonwealth

of Pennsylvania.