Adorers of the Blood of Chris v. Transcontinental Gas Pipe Line

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 21-2898

_____________

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 of the Blood of Christ,

Province of Columbia, PA, Inc. formerly known as

Saint Joseph Convent Motherhouse of the Adorers of the

Blood of Christ,

Columbia, Pennsylvania, Inc. formerly 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;

SISTER SARA DWYER;

SISTER MARIA HUGHES;

SISTER DANI BROUGHT;

SISTER MARY ALAN WURTH;

SISTER THERESE MARIE SMITH,

Appellants

v.

TRANSCONTINENTAL GAS PIPE LINE CO LLC

_____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No.: 5-20-cv-05627)

District Judge: Honorable Jeffrey L. Schmehl

_____________________________________

Argued

September 15, 2022

(Filed: November 8, 2022)

Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges.

J. Dwight Yoder [Argued]

Sheila V. O’Rourke

Gibbel, Kraybill & Hess

2933 Lititz Pike

P.O. Box 5349

Lancaster, PA 17606

Counsel for Appellants

Elizabeth U. Witmer [Argued]

Saul Ewing Arnstein & Lehr

1200 Liberty Ridge Drive

Suite 200

Wayne, PA 19087

Patrick F. Nugent

Sean T. O’Neill

Shane P. Simon

Saul Ewing Arnstein & Lehr

2

1500 Market Street

Centre Square West, 38th Floor

Philadelphia, PA 19102

Counsel for Appellee

_________

OPINION OF THE COURT

_________

RENDELL, Circuit Judge.

This is the second attempt by the Adorers of the Blood

of Christ (“Adorers”), a religious group opposed to the

extraction, transportation, and use of fossil fuels, to challenge

the route, construction, and operation of an interstate gas

pipeline on their property as violative of their rights under the

Religious Freedom and Restoration Act (“RFRA”). Their first

attempt sought an injunction before the pipeline was

constructed; this attempt seeks money damages after its

completion. In both cases, the District Court dismissed the

complaint on the ground that the Adorers’ failure to present

their claims to the Federal Energy Regulatory Commission

(“FERC”) at any time during the years-long administrative

proceedings, which ultimately authorized the pipeline,

foreclosed their claim under the Natural Gas Act’s (“NGA”)

exclusive-review framework. We affirmed the District Court’s

order in the first action, Adorers of the Blood of Christ v. FERC

(Adorers I), 897 F.3d 187 (3d Cir. 2018), and will do so in this

case as well.

3

I.

As we explained in connection with the Adorers’ first

case, under the NGA, FERC has the sole authority to issue a

“certificate of public convenience and necessity,” which

permits private gas pipeline developers to build, operate, and

maintain new interstate gas pipelines. 15 U.S.C.

§ 717f(c)(1)(A). To determine whether to issue such a

certificate, FERC must consider the public’s input, and, to that

end, it must provide reasonable notice to various parties who

would be affected by the pipeline and provide those parties

with an opportunity to be heard. Id. § 717f(c)(1)(B). “If FERC

ultimately issues the certificate following the requisite hearing,

any aggrieved person may seek judicial review of its

decision—either in the Court of Appeals for the District of

Columbia Circuit or the circuit wherein the natural gas

company is located or has its principal place of business.”

Adorers I, 897 F.3d at 189 (citing 15 U.S.C. § 717r(b)). Before

petitioning an appropriate court of appeals for review of a

FERC order, however, the aggrieved party must first seek

rehearing before FERC. 15 U.S.C. § 717r(a). Failure to seek

rehearing before FERC bars the aggrieved party from later

obtaining judicial review. Id.

II.

The Adorers collectively comprise an order of Roman

Catholic nuns whose deeply-held religious beliefs require them

“to protect, preserve, and treasure the land that” they own and

“to protect and preserve Earth.” App. at 18 ¶ 1. They own

property in Lancaster County, Pennsylvania, and use and

maintain that property in accordance with their religious

4

beliefs, including for agricultural purposes. Among other

things, the Adorers believe the extraction, transportation, and

use of fossil fuels accelerates global warming and climate

change and, thus, defiles God’s creation. Any use of their

property to facilitate the extraction, transportation, and use of

fossil fuels, violates their religious beliefs and practices. So,

in 2014, when Transcontinental Gas Pipe Line Company

(“Transco”) notified the Adorers that it was in the early stages

of designing a new 183-mile long, 42-inch diameter interstate

gas pipeline, known as the “Central Penn Line South,” part of

the “Atlantic Sunrise Pipeline,” to transport 1.7 million

dekatherms of gas through their property each day, the Adorers

explained to Transco’s right-of-way agent that this would

violate their religious beliefs and that they would not entertain

any offer by Transco to purchase a right-of-way through their

property. Nearly a year later, Transco filed a formal

application with FERC to obtain a certificate of public

convenience and necessity. See 15 U.S.C. § 717f(c).

FERC then proceeded to publish numerous notices,

over the course of more than thirty months, as part of the

pipeline approval process and as required under the NGA and

FERC regulations. It mailed letters about the project to

thousands of parties, solicited comments from the public, and

hosted four initial open meetings to discuss, among other

things, the proposed route of the pipeline and the effect of the

pipeline’s construction and operation on various stakeholders.

Adorers I, 897 F.3d at 191-92. Although FERC received

hundreds of written comments and heard scores of comments

and objections from interested parties at its initial meetings, the

Adorers neither provided comments to FERC nor did they

attend any of those meetings. Id.

5

Even when FERC contacted the Adorers directly, they

remained silent. On October 22, 2015, FERC delivered a letter

to the Adorers describing various pipeline routes under

consideration, including routes that would directly impact their

property, and invited them to participate in the environmental

review process where the Adorers could comment on the

project and request modifications or accommodations,

including the rerouting of the pipeline.1 Id. The Adorers,

however, did not respond to the letter, did not participate in the

process, and did not otherwise formally oppose the project as

it remained under review before FERC. Id.

On February 3, 2017, after receiving still further written

comments and oral comments from hundreds of speakers at

environmental review hearings, and after Transco altered the

pipeline’s route at least 132 times in response to public

comment—in total changing the original proposed route by

about fifty percent—FERC issued a certificate to Transco

authorizing it to build, operate, and maintain the pipeline.

Transcon. Gas Pipe Line Co., 158 FERC ¶ 61,125, 2017 WL

496024, ¶ 151 (Feb. 3, 2017). The certificate also authorized

1

Indeed, some property owners obtained meaningful relief

because of their participation in this process. In response to

property owner concerns, FERC attached certain conditions to

the issuance of any certificate to Transco including, for

example, that Transco agree to “compensate [organic farm]

landowners” if their organic farm certifications were impacted

by the pipeline, Transcon. Gas Pipe Line Co., 158 FERC ¶

61,125, 2017 WL 496024, ¶ 101, (Feb. 3, 2017), and that

Transco agree to provide “monetary compensation to the

occupants of affected noise sensitive areas in the project area,”

id. ¶ 167.

6

Transco, as provided under the NGA, to use eminent domain

to take rights-of-way from any property owners unwilling to

sell a right-of-way to Transco voluntarily. Id. ¶ 67; see 15

U.S.C. § 717f(h) (providing that “[w]hen any holder of a

certificate of public convenience and necessity cannot acquire

by contract, or is unable to agree with the owner of property to

the compensation to be paid for, the necessary right-of-way to

construct, operate, and maintain a pipe line . . . it may acquire

the same by the exercise of the right of eminent domain”).

While the final pipeline route avoided some properties because

of fruitful discussion among the property owners, FERC, and

Transco during the certification process, the final pipeline

route, not surprisingly, wended through the Adorers’ property.

On April 14, 2017, Transco filed a complaint in federal

court under Federal Rule of Civil Procedure 71.1 (setting forth

the procedure for condemning real property by eminent

domain) and § 717f(h) of the NGA seeking an order of

condemnation to permit it to take title to rights-of-way in the

Adorers’ property necessary to build and operate the pipeline.

Despite service, the Adorers failed to answer or otherwise

respond to the complaint until after Transco filed a motion for

default judgment and sought an emergency order from the

District Court authorizing it to take immediate possession of

the rights-of-way.

Ultimately, the District Court granted default judgment

to Transco regarding its substantive entitlement to the rights-

of-way but deferred a decision on Plaintiff’s request for

possession until after an evidentiary hearing.2

2

The District Court later granted full possession of the right-

of-way to Transco and awarded “just compensation” to the

7

One week after the District Court granted default

judgment to Transco and just three days before the District

Court’s evidentiary hearing, the Adorers filed a separate suit in

the U.S. District Court for the Eastern District of Pennsylvania

claiming for the first time in any official filing, that FERC, and

Transco—who was later added as a defendant—violated their

rights under RFRA. They urged that under RFRA, they had

the right to raise a claim or defense for “appropriate relief.”

See 42 U.S.C. § 2000bb-1(c) (“A person whose religious

exercise has been burdened in violation of this section may

assert that violation as a claim or defense in a judicial

proceeding and obtain appropriate relief against a

government.”). And they contended that this gave them the

right to institute an action in federal court rather than proceed

Adorers but rejected their claim for additional damages, which

the Adorers claimed arose from the same purported violation

of RFRA at issue in this case. The District Court explained

that not only was the Adorers’ RFRA claim irrelevant to the

question of the fair market value of the right-of-way, but also

that it was a counterclaim for compensatory damages beyond

the ken of condemnation proceedings under Fed. R. Civ. P.

71.1. Under Fed. R. Civ. P. 71.1, the District Court noted, “[a]

defendant waives all objections and defenses not stated in its

answer. No other pleading or motion asserting an additional

objection or defense is allowed” and “Courts have repeatedly

upheld Rule 71.1’s limitation on additional pleadings such as

counterclaims.” App. at 523 (internal quotation marks

omitted) (quoting Fed. R. Civ. P. 71.1(e)(3)). As the Adorers

failed to answer the condemnation complaint and their claim

for additional damages was not cognizable under Fed. R. Civ.

P. 71.1, the District Court rejected the claim. The Adorers did

not appeal that ruling.

8

before FERC. The Adorers sought an injunction permanently

enjoining Transco from completing its project.

Transco moved to dismiss the Adorers’ complaint for

lack of subject matter jurisdiction and the District Court

granted the motion. The District Court concluded that “RFRA

did not allow the Adorers to circumvent the specific procedure

prescribed by [Congress under] the NGA for challenging a

FERC order” and “[b]ecause the Adorers had failed to seek

FERC rehearing . . . it was foreclosed from hearing their

claims.” Adorers I, 897 F.3d at 193. Adorers appealed and we

affirmed the District Court’s order. Id. at 198.

In so doing, we rejected the Adorers’ contention that

RFRA somehow gave them the statutory right to assert their

claim in federal district court rather than before FERC. We

reasoned that the NGA’s “exhaustion provision . . . makes clear

Congress’ intent to confer exclusive jurisdiction to the NGA

by a highly reticulated statute nullifying any procedural

alternatives an aggrieved party may otherwise have.” Id. at

195. We continued,

Indeed, the NGA is the exclusive

remedy for matters relating to the

construction of interstate natural

gas pipelines. It forms the

paradigm by which FERC operates

in matters related to interstate

natural gas pipelines. By failing to

avail themselves of the protections

thereunder, the Adorers have

foreclosed judicial review of their

substantive RFRA claims.

9

Id.

We also rejected the Adorers’ “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.’” Id. at 197. In rejecting

this claim, we observed that “FERC may hear any claim raised

before it—even potential violations of federal law.” Id. And

if FERC incorrectly adjudicated such a claim, the aggrieved

claimant “has the opportunity for direct appeal before a federal

court of appeals.” Id. Had the Adorers “participated in the

administrative process, FERC may have denied or modified the

conditions of Transco’s certificate . . . . [and] [u]nder these

circumstances, the Adorers would have, at the very least, had

the opportunity to seek the [injunctive] relief they so desire.”

Id. at 198.

Soon after the pipeline was completed and put into

service, the Adorers filed a new complaint in the District Court.

Although, as the District Court noted, this new complaint

“[wa]s nearly identical to the previous action filed by the

Adorers for [an] alleged RFRA violation[]” the Adorers made

three changes. App. at 7. First, the Adorers named only

Transco as a defendant. Second, rather than seek injunctive

relief as they unsuccessfully attempted to in Adorers I, they

sought money damages for the RFRA violation. App. at 41 ¶

129. Third, the Adorers alleged, somewhat differently from

their position in Adorers I, that the source of the substantial

burden on their religious exercise arose not from “FERC’s

decision to force the Adorers to use land they own to

accommodate a fossil fuel pipeline,” Compl. at 9 ¶ 45, Adorers

10

I, No. 5:17-cv-03163-JLS (E.D. Pa. July 14, 2017), ECF No. 1

(emphasis added), but instead, from “Transco’s action in

placing the Pipeline in to [sic] service using the Adorers’ land,”

App. at 37 ¶ 111 (emphasis added), thus, suggesting that their

claim was not ripe until this occurred.3

Transco again moved to dismiss this new complaint for

lack of subject matter jurisdiction and the District Court again

granted the motion. The District Court, applying our holding

in Adorers I, concluded that given Adorers’ admission 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 [failed] to [appeal their claim to] the

appropriate Court of Appeals . . . . the Adorers . . . foreclosed

judicial review of their substantive RFRA claims.” App. 9, 10

(citation omitted). The District Court rejected the Adorers’

argument that “because they are seeking monetary damages . .

. 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.” App. at 10.

The Adorers filed this timely appeal.

3

Compare Compl. at 2 ¶ 1, Adorers I, No. 5:17-cv-03163-JLS

(E.D. Pa. July 14, 2017), ECF No. 1 (“FERC’s action in issuing

the FERC Order approving and authorizing Transco to forcibly

take and use land owned by the Adorers . . . will, if allowed to

proceed, substantially burden the Adorers’ exercise of their

deeply held religious beliefs”) with App. 33 ¶ 80 (“[T]here was

no burden placed on the Adorers’ religious exercise at the time

the FERC Order was issued.”).

11

III.4

A.

As we did in Adorers I, we find the Supreme Court’s

opinion in City of Tacoma v. Taxpayers of Tacoma to provide

the controlling principle in this case, 357 U.S. 320 (1958).

There, the City of Tacoma was to construct a power plant on

the Cowlitz River under a license issued by the Federal Power

Commission (“FPC”). Id. at 324. The building of the project

required the City to take land used as a fish hatchery and owned

by the State of Washington. Id. at 325. Unlike the situation in

this case, the State there did object and unsuccessfully opposed

the grant of the license by the FPC. Id. at 325-26. The State

later moved successfully in the Superior Court of Washington

for an order enjoining the City from proceeding to construct

the project or sell any of its revenue bonds, an order which was

then ultimately appealed and affirmed by the Supreme Court

of Washington. Id. at 331-32.

The United States Supreme Court granted certiorari and

reversed. It noted:

This statute is written in simple

words of plain meaning and leaves

no room to doubt the congressional

purpose and intent. It can hardly

4

We have jurisdiction under 28 U.S.C. § 1291. We review

threshold matters of justiciability de novo. See In re Horizon

Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 632

(3d Cir. 2017); Hartig Drug Co. v. Senju Pharm. Co., 836 F.3d

261, 267-68, 267 n.8 (3d Cir. 2016).

12

be doubted that Congress, acting

within its constitutional powers,

may prescribe the procedures and

conditions under which, and the

courts in which, judicial review of

administrative orders may be had.

So acting, Congress in § 313(b)

prescribed the specific, complete

and exclusive mode for judicial

review of the Commission’s

orders. It there provided that any

party aggrieved by the

Commission’s order may have

judicial review, upon all issues

raised before the Commission in

the motion for rehearing, by the

Court of Appeals which ‘shall

have exclusive jurisdiction to

affirm, modify, or set aside such

order in whole or in part,’ and that

‘[t]he judgment and decree of the

court, affirming, modifying, or

setting aside, in whole or in part,

any such order of the Commission,

shall be final . . . . It thereby

necessarily precluded de novo

litigation between the parties of all

issues inhering in the controversy,

and all other modes of judicial

review.

Id. at 335-36 (emphasis added).

13

The Court then concluded that the State’s attempts to

obtain recourse from the Washington state courts constituted

“impermissible collateral attacks” on the approval by the FPC,

which was reviewed and affirmed by the U.S. Court of Appeals

for the Ninth Circuit. Id. at 341. As we observed in Adorers

I, “the Supreme Court has long held that . . . statutory review

scheme[s] [like that of the NGA, which channel all claims

relating to the certification or licensing of interstate energy

projects through an exclusive judicial review scheme], . . .

‘necessarily preclude[] de novo litigation between the parties

of all issues inhering in the controversy, and all other modes of

judicial review.’” Adorers I, 897 F.3d at 197 (quoting Tacoma,

357 U.S. at 336, 341) (emphasis added). The rule that any

claim raising issues “inhering in” the certification of a new

interstate gas pipeline must first be presented to FERC—or else

forfeited—also applies to claims that “could and should have

been” raised during the certification process. Tacoma, 357

U.S. at 339. In commenting on this principle, the Tenth Circuit

has remarked that it “would be hard pressed to formulate a

doctrine with a more expansive scope.” Williams Nat. Gas Co.

v. City of Okla. City, 890 F.2d 255, 262 (10th Cir. 1989).

The well-established doctrine of “impermissible

collateral attack” has been invoked by many of our sister courts

of appeals to bar suits brought by persons aggrieved by the

certification, construction, or operation of new interstate

energy projects. See, e.g., Bohon v. FERC, 37 F.4th 663, 666

(D.C. Cir. 2022) (concluding that “[t]he Natural Gas Act’s

review scheme precluded district-court jurisdiction over the

Bohons’ collateral attack on the FERC order”); Otwell v. Ala.

Power Co., 747 F.3d 1275, 1279 (11th Cir. 2014) (concluding

that various property owners’ state tort claims regarding the

water levels in a lake were barred as “impermissible collateral

14

attack[s]” on a FERC license to a hydroelectric dam company

that permitted the company to change the water levels in the

lake); Am. Energy Corp. v. Rockies Exp. Pipeline LLC, 622

F.3d 602, 605 (6th Cir. 2010) (concluding that a coal

company’s various claims were barred as impermissible

collateral attacks on a FERC certificate and explaining that

“[e]xclusive means exclusive, and the Natural Gas Act

nowhere permits an aggrieved party otherwise to pursue

collateral review of a FERC certificate in state court or federal

district court”); see also Simmons v. Sabine River Auth. La.,

732 F.3d 469, 477 (5th Cir. 2013) (not applying Tacoma but

otherwise concluding that a property owner’s state negligence

claim for damages caused by floods resulting from the opening

of a hydroelectric dam was an improper “attempt to force

changes to a FERC-issued license”).

The Eleventh Circuit’s opinion in Otwell is particularly

instructive. 747 F.3d 1275. Alabama Power operated a

hydroelectric dam on a lake for decades, under a license from

the FPC. Id. at 1277. As the license approached its expiration,

the utility sought to renew the license on new terms. Id. at

1278. Contrary to its long-existing practice, the utility sought

to lower the water level in the lake and release water at various

times of the year to cool a downstream power plant. Id. The

Smith Lake Improvement and Stakeholders Association

(“SLISA”), comprised of some of the landowners from around

the lake, intervened in the FERC proceedings and opposed the

renewal. Id. It requested that the utility maintain higher water

levels in the lake and minimize the release of water

downstream. Id. FERC rejected SLISA’s requests and granted

the utility a license to operate at the lower water level, which it

then did. Id.

15

Some members of SLISA then filed a putative class

action in state court against the utility, later removed to federal

district court, claiming that its lowering of the water in the lake

caused tortious injury to their property. Id. To remedy their

injuries, the plaintiffs sought “monetary damages, a

declaratory judgment[,] . . . and an injunction requiring [the

utility] to construct cooling towers at [the downstream power

plant].” Id. at 1279. The district court granted summary

judgment to the utility concluding that the plaintiffs’ claims

“were an impermissible collateral attack on the FERC’s . . .

relicensing order.” Id. at 1279. The Eleventh Circuit agreed.

Id. at 1277.

Relying on the principle articulated in Tacoma, the

Eleventh Circuit wrote that “Appellants cannot escape

[Congress’ exclusive review scheme] by arguing that they are

pursuing different claims and different relief than the parties

before the FERC.” Id. at 1281 (citing Tacoma, 357 U.S. at

336). “[T]heir . . . claims are inescapably intertwined with a

review of the FERC’s final decision.” Id. at 1282 (emphasis

added) (citations omitted). “The review entailed by

Appellants’ claims is statutorily dedicated to the court of

appeals.” Id.

The Court further concluded that the landowners were

barred from advancing their state tort claims against the utility

even though they were not themselves intervenors in the

relicensing proceedings. The Court explained,

[w]e do not read [the exclusive

jurisdiction scheme] as allowing

any person or entity that was not a

party to the FERC proceedings to

16

collaterally challenge the final

order resulting from those

proceedings. Instead, we read [it]

as limiting the persons who may

seek judicial review of an order of

the FERC to those parties who

participated in the FERC

proceedings. Thus, non-parties to

the proceedings before the FERC

may not contest the agency’s final

decision in an alternative forum by

bringing challenges that are

inescapably intertwined with a

review of the agency’s final

determination.

Id. at 1282 (emphasis added) (internal citations omitted). This

reading, the court continued, “prevents the [exclusive

jurisdiction] provision from being rendered nugatory.” Id.

Indeed, to read the provision in any other way would allow,

any person or entity with an

interest in the proceedings before

the FERC [to] evade the . . .

exclusive judicial review provision

by simply choosing not to

participate in the proceedings, or

by creating a corporate entity to

champion its interests before the

agency. Then, following an

adverse order, the non-participants

could obtain a collateral

redetermination of the identical

17

issues considered and rejected in

the FERC’s final order because

those persons were not parties to

the proceedings. Such a

construction of the statute would

do violence to Congress’s

deliberately crafted administrative

scheme.

Id. at 1282-83 (emphasis added). In the Eleventh Circuit’s

view, whether a party’s claim is an impermissible collateral

attack upon a FERC order centers on whether the adjudication

of the claim would require the court to review any issues

“inescapably intertwined” with the earlier FERC certification

process. Id. at 1282.

The Eleventh Circuit thus added another way of

determining whether the later proceeding involved issues that

“inhered in” the certification process and constituted an

impermissible collateral attack on a FERC decision. It looked

to whether the later claim raised issues “inescapably

intertwined” with the FERC certification process. This tracks

the approaches of other courts of appeals.

The D.C. Circuit in Bohon, for example, focused on

whether the plaintiff’s claims were “anchored in [the] pipeline

proceedings” and, if successful, would “directly imperil[] a

specific certificate that FERC granted.” 37 F.4th at 666. And

the Sixth Circuit in Am. Energy Corp. focused on whether the

“heart of th[e] claim[]” was bound up in the operation of the

pipeline, which was authorized by FERC’s certificate. 622

F.3d at 605. No matter the specific language employed by our

various sister courts of appeals to describe the analysis, in

18

answering the question of whether a claim is an impermissible

collateral attack, they each focus their attention not on the

plaintiffs’ characterization of their claim but rather on whether

the claim “could and should have” been presented to FERC

because the claims raise “issues inhering in the controversy.”

Tacoma, 357 U.S. at 336, 339.

The Adorers urge that the Supreme Court’s recent

opinion in PennEast Pipeline Co. v. New Jersey, supports their

position that theirs is not a collateral attack. 141 S. Ct. 2244

(2021). We disagree.

There, as in Tacoma, the recipient of a certificate of

public convenience and necessity sought to exercise its

eminent domain power against state lands. Id. at 2253. The

State of New Jersey, however, opposed the condemnation

proceedings on sovereign immunity grounds. Id. It lost before

the district court, but we reversed because we did not think that

15 U.S.C. § 717f(h) clearly delegated the federal government’s

power to pierce states’ sovereign immunity along with its

eminent domain power. Id. at 2253–54. The Supreme Court

granted certiorari and, before reaching the merits of the

dispute, held that New Jersey had not launched a collateral

attack on the FERC order granting PennEast’s certificate. Id.

at 2254. The Court explained that this case was unlike

Tacoma, because

New Jersey does not seek to

modify FERC’s order; it asserts a

defense against the condemnation

proceedings initiated by PennEast.

To determine whether the District

Court correctly rejected New

19

Jersey’s defense, the Third Circuit

needed to decide whether

§ 717f(h) grants natural gas

companies the right to bring

condemnation suits against States.

Its conclusion that § 717f(h) does

not authorize such suits did not

“modify” or “set aside” FERC’s

order, which neither purports to

grant PennEast the right to file a

condemnation suit against States

nor addresses whether § 717f(h)

grants that right.

Id. Even though the state asserted a counterclaim that would

have the effect of negating the route that FERC had set up via

the regulatory process, it was not a collateral attack because

asserting the sovereign immunity defense is not the same as

“arguing that a licensee could not exercise the rights granted to

it by the license itself.” Id. (emphasis added). Our

determination as to whether the NGA delegated the federal

power to pierce states’ sovereign immunity did not touch the

FERC order at all. See id.

The Adorers urge that Tacoma is distinguishable and

PennEast is the better analogue here because the “appropriate

relief” that is due to them under RFRA is monetary damages,

42 U.S.C. § 2000bb-1(c), and granting those does not modify

or set aside Transco’s certificate. We disagree. The fact

remains that their allegation that the presence and operation of

the pipeline on their property violated their rights under RFRA

is the essence of both lawsuits. This could and should have

been contested before FERC during the certification

20

proceedings where such issues were to be resolved.5 The

appropriate court of appeals could then have reviewed and

remedied any insufficiency in FERC’s resolution of the

Adorers’ claim. But, again, having failed to avail themselves

of the exclusive review scheme established by Congress under

the NGA for adjudicating such claims, the Adorers’ claim is

now barred as an impermissible collateral attack.

The Tenth Circuit’s analysis in Save the Colorado v.

Spellmon, --- F.4th ----, No. 21-1155, 2022 WL 4588319 (10th

Cir. Sept. 30, 2022) leads us to the same result. There, the court

let the opponents of plans to raise a local dam and expand the

reservoir behind it sue in the district court, but the basis for

their lawsuit was completely distinguishable from the

Adorers’. The at-issue agency approvals did not come from

FERC, but from the Army Corps of Engineers and the United

States Fish and Wildlife Service. Save the Colorado, 2022 WL

4588319, at *2, *7. After analyzing the underlying statutory

5

Indeed, the more “appropriate relief,” as the District Court

noted, was presumably a rerouting of the pipeline around their

property. App. at 11. The thrust of RFRA is the prevention or

elimination of a violation, not simply the compensation for

spiritual harms after the fact by an award of money. See Little

Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,

140 S. Ct. 2367, 2395 (2020) (Alito, J., concurring) (emphasis

added) (citation omitted) (explaining that “[o]nce it [is]

apparent that [the Government’s action] [runs] afoul of RFRA,

the Government [i]s required to eliminate the violation. RFRA

does not specify the precise manner in which a violation must

be remedied; it simply instructs the Government to avoid

‘substantially burden[ing]’ the ‘exercise of religion’—i.e., to

eliminate the violation.”).

21

claims that the plaintiffs had brought and determining whether

each underlying issue inhered in the controversy per Tacoma,

id. at *7–12, the Tenth Circuit concluded that even though “the

municipality needed a discharge permit to raise the dam and

expand the reservoir—matters subject to [FERC’s] licensing

decision,” because the NGA did not govern the licenses

granted by the Corps or Service and FERC could not hear

challenges to those licenses, the plaintiffs’ “claims did not

attack the merits of [FERC’s] approval of an amended license,”

id. at *14. Therefore, this was not a collateral attack. Id. at *5,

14.

The Tenth Circuit noted that this conclusion was

consistent with Adorers I, because the breadth of FERC’s

authority was not an issue in that case. Id. at *9. Here, there

is no question that FERC can adjudicate RFRA claims, see

Snoqualmie Indian Tribe v. FERC, 545 F.3d 1207, 1213 (9th

Cir. 2008) (noting that FERC had evaluated the tribe’s RFRA

claim before relicensing a hydroelectric project), and the

Adorers do not attack any license that Transco has received

from any other agency, so Save the Colorado does not advance

the Adorers’ cause.

B.

In this case, we conclude the Adorers’ RFRA claim is

an impermissible collateral attack on the FERC certificate

because the claim could and should have been raised before

FERC. Their RFRA claim raises issues inhering in the

controversy, namely the route, construction, and operation of

the pipeline through the Adorers’ property. The Adorers allege

that “Transco’s action in placing the Pipeline in to [sic] service

using the Adorers’ land caused a substantial burden to the

22

religious exercise of the Adorers in violation of RFRA.” App.

at 37 ¶ 111 (emphasis added). They also allege that it was

Transco’s “use [of their] private property . . . to install and

operate a natural gas pipeline that . . . “damage[d] . . . the

Adorers.” App. at 39 ¶ 117. These allegations make plain that

their RFRA claim is “anchored in [the] pipeline.” Bohon, 37

F.4th at 666. It is “inescapably intertwined” with the pipeline’s

route, construction, and operation. Otwell, 747 F.3d at 1282.

And the “heart of th[e] claim[]” challenges the operation of the

pipeline, which was authorized after extensive, public

proceedings before FERC as required by the NGA and FERC

regulations. Am. Energy Corp., 622 F.3d at 605.

The consequences of a hypothetical victory for the

Adorers betray the collateral nature of their RFRA damages

suit. Were the Adorers to succeed on their RFRA claim,

moreover, a damages award could conceivably affect, among

other things, the price of gas flowing to Transco’s customers,

the gas flow rate, and the general fiscal and economic impact

of operating the pipeline. Such a result would no doubt

impermissibly, “directly imperil[]” the FERC certificate and

would otherwise undermine the certification procedure

Congress created in enacting the NGA. Bohon, 37 F.4th at

666. Furthermore, it would cause potential contractors to think

twice before embarking on a costly project only to later face

claims for damages caused by the pipeline. Thus, the Adorers’

claim is, like the plaintiffs’ claims in Tacoma, Otwell,

Williams, Bohon, and Am. Energy, an impermissible collateral

attack.

23

C.

We cannot conclude without addressing three specific

contentions pressed by the Adorers in their briefs and at oral

argument. First, they urge that because FERC cannot award

money damages, this suit was properly brought in District

Court.6 But this argument makes little sense. Had they

proceeded with an objection before FERC, and convinced the

Commission of a violation, no doubt the Commission would

have provided relief—by rerouting the pipeline or otherwise

attaching some condition upon the permit as it did in countless

other instances—and if it did not, the Adorers would have had

recourse to an appeal to an appropriate court of appeals. If their

claim was valid, they would have suffered no harm. Moreover,

any claim for damages would not have been cognizable as no

damage had yet occurred. Whether FERC can or cannot award

damages is irrelevant.

Second, the Adorers essentially repeat the argument

they made in Adorers I, that their claim was not ripe at the time

FERC issued the certificate, but rather, the claim began to

accrue only once Transco “plac[ed] the Pipeline in to [sic]

service,” App. at 37 ¶ 111, thereby, placing a burden upon their

religious exercise. In addition to the reason we previously

rejected this claim,7 we note that were we to adopt the Adorers’

suggestion that they were under no obligation to present their

RFRA claim to FERC because the claim was not ripe, the court

would effectively exempt all claims against a new pipeline’s

construction and operation from the NGA’s review scheme.

Such a rule would entirely upend Congress’s intent.

6

Appellants’ Br. at 40-47.

7

See above Section II.

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Third, the Adorers urge that because Transco knew of

their objection to the pipeline and neither it nor FERC brought

them into the administrative proceeding to resolve it, they

should somehow be permitted to proceed in federal court. But

this turns the administrative process on its head. It is not up to

the pipeline contractor or FERC to seek out potential objectors

at its peril. To the contrary, objectors who sit on their hands

and do not raise their concerns in the administrative process do

so at their peril. To permit a party to reserve a claim, the

success of which would directly imperil a FERC decision to

certify an interstate pipeline, by remaining silent during the

FERC proceedings only to raise the claim in de novo litigation

in a different forum of its own choosing would contravene

Congress’ decision to channel all such claims through the

NGA’s exclusive review framework. Such a result would also

contravene the Supreme Court’s long-standing precedent in

Tacoma.

IV.

For these reasons, we will affirm the District Court’s

order granting Transco’s motion to dismiss.

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