Petition for Writ of Certiorari — Adorers of the Blood of Christ, United States Province, et al., Petitioners v. Federal Energy Regulatory Commission, et al.

Supreme Court briefOct 19, 2018

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APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Third Circuit

(July 25, 2018) . . . . . . . . . . . . . . . App. 1

Appendix B Memorandum and Order in the

United States District Court for the

Eastern District of Pennsylvania

(September 28, 2017) . . . . . . . . . App. 24

Appendix C Regulations and Statutes

15 U.S.C. § 717 . . . . . . . . . . . . . . App. 37

15 U.S.C. § 717f . . . . . . . . . . . . . App. 37

15 U.S.C. § 717o . . . . . . . . . . . . . App. 41

15 U.S.C. § 717r . . . . . . . . . . . . . App. 42

28 U.S.C. § 1254 . . . . . . . . . . . . . App. 44

28 U.S.C. § 1291 . . . . . . . . . . . . . App. 44

28 U.S.C. § 1331 . . . . . . . . . . . . . App. 45

28 U.S.C. § 1343 . . . . . . . . . . . . . App. 45

42 U.S.C. § 1988 . . . . . . . . . . . . . App. 45

42 U.S.C. § 2000bb . . . . . . . . . . . App. 47

42 U.S.C. § 2000cc . . . . . . . . . . . App. 48

18 C.F.R. § 157.10 . . . . . . . . . . . App. 50

18 C.F.R. § 385.214 . . . . . . . . . . App. 51

Appendix D Transcontinental Gas Pipe Line

Company, LLC; Notice of Application,

Department of Energy, Federal

Energy Regulatory Commission,

Docket No. CP15-138-000; PF14-8000, 80 Fed. Reg. 20213

(April 15, 2015) . . . . . . . . . . . . . App. 55

Appendix E [Excerpts] Order Issuing Certificate,

United States of America, Federal

Energy Regulatory Commission,

Docket No. CP15-138-000

(February 3, 2017) . . . . . . . . . . . App. 60

Appendix F Order in the United States District

Court for the Eastern District of

Pennsylvania

(August 23, 2017) . . . . . . . . . . . . App. 92

Appendix G Authorization to Construct Central

Penn Lines North and South

Pipelines, Meter Stations, and Use of

Contractor Yards, Federal Energy

Regulatory Commission, Docket Nos.

CP15-138-000 and CP17-212-000

(September 15, 2017) . . . . . . . . App. 100

Appendix H Letter to FERC from J.D. Yoder

(August 31, 2018) . . . . . . . . . . . App. 103

Appendix I Letter Order to M. Dunn from FERC

(October 4, 2018) . . . . . . . . . . . App. 108

Appendix J Adorders of the Blood of Christ, Land

Ethic . . . . . . . . . . . . . . . . . . . . . App. 110

App. 1

APPENDIX A

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 17-3163

[Filed July 25, 2018]

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 THE

BLOOD OF CHRIST, PROVINCE OF COLUMBIA,

PA, 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 formerly known as

SAINT JOSEPH CONVENT MOTHERHOUSE OF

THE ADORERS OF THE BLOOD OF CHRIST,

COLUMBIA, PENNSYLVANIA, INC.; SISTER DANI

BROUGHT; SISTER MARY ALAN WURTH; SISTER

SARA DWYER; SISTER MARIA HUGHES; SISTER

THERESE MARIE SMITH,

Appellants

FEDERAL ENERGY REGULATORY

COMMISSION;

App. 2

COMMISSIONER OF THE FEDERAL ENERGY

REGULATORY COMMISSION;

TRANSCONTINENTAL GAS PIPE LINE

COMPANY, LLC, C/O CT CORPORATION SYSTEM

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 5-17-cv-03163)

District Judge: Honorable Jeffrey L. Schmehl

______________

Argued January 19, 2018

______________

Before: SMITH, Chief Judge, GREENAWAY, JR.,

and KRAUSE, Circuit Judges

(Opinion Filed: July 25, 2018)

J. Dwight Yoder, Esq. [Argued]

Gibbel, Kraybill & Hess

2933 Lititz Pike

P.O. Box 5349

Lancaster, PA 17606

Counsel for Appellants

Susanna Y. Chu, Esq. [Argued]

Robert H. Solomon, Esq.

Federal Energy Regulatory Commission

888 1st Street, N.E.

Washington, DC 20426

Counsel for Appellees Federal Energy Regulatory

Commission and Commissioner Federal Energy

Regulatory Commission

App. 3

Elizabeth U. Witmer, Esq. [Argued]

Saul Ewing Arnstein & Lehr

1200 Liberty Ridge Drive

Suite 200

Wayne, PA 19087

Patrick F. Nugent, Esq.

Sean T. O’Neill, Esq.

John F. Stoviak, Esq.

Saul Ewing Arnstein & Lehr

1500 Market Street

Centre Square West, 38th Floor

Philadelphia, PA 19102

Counsel for Appellee Transcontinental Gas Pipe

Line Company, LLC

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

Under the Natural Gas Act (“NGA”), 15 U.S.C.

§§ 717–717z, the Federal Energy Regulatory

Commission (“FERC”) has the power to issue

“certificates of public convenience and necessity”

authorizing private developers to construct, operate,

and maintain interstate natural gas pipeline projects.

See 15 U.S.C. § 717f(c). But before FERC may grant

such a certificate, it must, in most circumstances, set

the matter for a hearing and provide reasonable notice

to interested parties. 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

App. 4

natural gas company is located or has its principal

place of business. Id. § 717r(b). The statute provides

that the chosen court of appeals then has “exclusive”

jurisdiction “to affirm, modify, or set aside” FERC’s

order. Id. § 717r(b), (d)(1). Prior to seeking review in

the relevant court of appeals, however, the aggrieved

party must, within thirty days of the issuance of the

certificate, apply for rehearing before FERC. Id.

§ 717r(a). Anyone who fails to first seek rehearing

before FERC is statutorily barred from later seeking

judicial review. See id.

In this case, the Appellants are the Adorers of the

Blood of Christ (the “Adorers”), a vowed religious order

of Roman Catholic women that owns a parcel of land in

Columbia, Pennsylvania affected by FERC’s decision to

issue a certificate of public convenience and necessity

to Transcontinental Gas Pipe Line Company, LLC

(“Transco”), authorizing the company to construct a

roughly two-hundred-mile-long pipeline (“Pipeline

Project” or “Project”). The Adorers object to the use of

their land as part of the Project, explaining that their

deeply-held religious beliefs require that they care for

the land in a manner that protects and preserves the

Earth as God’s creation. But despite receiving notice of

the proposed project, the Adorers never raised this

objection before FERC. Instead, over five months after

FERC granted Transco the certificate, the Adorers filed

suit in the District Court for the Eastern District of

Pennsylvania, raising a claim under the Religious

Freedom Restoration Act (“RFRA”), 42 U.S.C.

§ 2000bb-1. The District Court promptly dismissed the

Adorers’ complaint, concluding that it lacked subject

matter jurisdiction in light of the NGA’s specific

provisions addressing judicial review of FERC orders.

App. 5

On appeal, the Adorers contend that the District

Court erred because their RFRA claim raises a federal

question, over which the court had jurisdiction

pursuant to 28 U.S.C. § 1331. We disagree, and hold

that a RFRA cause of action, brought by invoking a

court’s general federal question jurisdiction, does not

abrogate or provide an exception to a specific and

exclusive jurisdictional provision prescribing a

particular procedure for judicial review of an agency’s

action. Accordingly, we will affirm the order of the

District Court.

The Pipeline Project proposed by Transco consists of

199.5 miles of new pipeline in Pennsylvania connecting

to existing pipelines running to South Carolina. The

Pipeline Project is marketed as potentially supplying

more than seven million American homes with enough

natural gas to meet their daily needs by connecting

natural gas producing Pennsylvania regions to markets

in the mid-Atlantic and southeastern states.

The Pipeline Project consists of many subsections,

including “Central Penn Line South,” a proposed

127.3-mile section of the Project that will run from

Lancaster County, Pennsylvania to Columbia,

Pennsylvania, with a forty-two-inch diameter capable

“In an appeal from a grant . . . of a motion to dismiss for lack of

subject matter jurisdiction pursuant to Rule 12(b)(1), this Court

reviews only whether the allegations on the face of the complaint,

taken as true, allege sufficient facts to invoke the jurisdiction of

the District Court.” Oss Nokalva, Inc. v. European Space Agency,

617 F.3d 756, 761 n.2 (3d Cir. 2010).

App. 6

of transporting 1.7 dekatherms (billion cubic feet) of

natural gas per day, and a maximum operating

pressure of 1,480 pounds per square inch. The

subsection would facilitate the extraction, harnessing,

transportation, and use of natural gas. The Pipeline

Project would run through the Adorers’ property in

Columbia, Pennsylvania.

On July 29, 2014, FERC published a Notice of Intent

to Prepare an Environmental Impact Statement for the

Planned Atlantic Sunrise Expansion, Request for

Comments on Environmental Issues, and Notice of

Public Scoping Meetings (“NOI”) in the Federal

to nearly 2,500 interested parties, including affected

property owners, to provide notice of the proposed

Pipeline Project. The NOI provided a synopsis of the

Pipeline Project and a preliminary list of issues

identified by FERC’s staff. It also described the

environmental review process, invited written

comments on issues that should be addressed, listed

the date and location of four public meetings to be held

in the area surrounding the Project, and provided a

deadline of August 18, 2014, for all comments.

According to FERC, it received over six hundred

written comments from various interested parties, and

ninety-three speakers provided comments at the

scoping meetings held between August 4 and 7, 2014.

The Adorers did not provide a written comment or

attend any one of these meetings.

Transco filed its project application with FERC for

a certificate of public convenience and necessity for the

App. 7

Pipeline Project on March 31, 2015. On October 22,

2015, FERC mailed letters to landowners potentially

affected by the proposed Pipeline Project. The letter

briefly described proposed project reroutes under

consideration, invited newly affected landowners to

participate in the environmental review process, and

provided a special thirty-day limited scoping period.

Among the recipients of the October 22, 2015 letter

were the Adorers, who failed to respond to the letter.

The Adorers are “an ecclesial group of women living

in community” and practicing their deeply-held

religious convictions, App. 28, “whose religious practice

includes protecting and preserving creation, which they

believe is a revelation of God,” App. 24. They believe

that “God calls humans to treasure land as a gift of

beauty and sustenance that should not be used in an

excessive or harmful way.” App. 24. Part of their

practice is to “protect, preserve and treasure the land

that [they] own.” App. 24.

The Adorers own the parcel of land in Columbia,

Pennsylvania that is at issue here. The land has been

used to sponsor the St. Anne’s Retirement Community,

and for growing crops by local farmers. The Adorers

assert that their intentional decision on how to use the

land “is an integral part of exercising their

well-established and deeply-held religious beliefs as

active and engaged stewards of God’s earth.” App. 32.

App. 8

In 2015, the Adorers followed an encyclical2 letter

titled “Laudato Si’ of the Holy Father Francis on Care

for our Common Home,” written by Pope Francis. In

the letter, Pope Francis provides a comprehensive

theological basis that, as an act of religious belief and

practice, members of the Roman Catholic Church must

preserve the Earth as God’s creation. Specifically, Pope

Francis identifies that climate change based, among

other things, “on the great concentration of greenhouse

gases related mainly as a result of human activity” and

“aggravated by a model of development based on the

intensive use of fossil fuels . . . is a global problem.”

Pope Francis, Laudato Si’ of the Holy Father Francis

on Care for our Common Home 18–19, 20–21 (2015).

Accordingly, the letter makes a calling “to devise larger

strategies to halt environmental degradation and to

encourage a ‘culture of care’ which permeates all of

society.” Id. at 166–67.

On May 5, 2016, FERC issued a draft

Environmental Impact Statement (“EIS”) addressing

the issues raised during the scoping period and up to

its publication. Notice of the draft EIS was published in

the Federal Register on May 12, 2016, and mailed to

the affected parties, several environmental entities, as

well as to additional affected parties that were added

after the issuance of the NOI. FERC then held four

public comment meetings between June 13 and June

16, 2016, where approximately 203 speakers provided

comments regarding the draft EIS. FERC also received

An encyclical letter is a letter sent by a bishop or high church

official that treats a matter of grave or timely importance and is

intended for extensive circulation. Encyclical, Webster’s Third New

International Dictionary 747 (4th ed. 1976).

App. 9

over 560 written comments from affected parties

regarding the draft EIS. As a result of the oral and

written comments, FERC postponed the issuance of the

final EIS, and nearly 100 additional comments were

filed related to the Pipeline Project. The Adorers failed

to provide a comment or otherwise participate in any of

these fora.

On February 3, 2017, FERC issued an “Order

Issuing Certificate” to Transco authorizing the

construction and operation of the Pipeline Project.

Among other things, the Order granted Transco the

right to take private property on the Pipeline Project by

eminent domain, should landowners refuse to

voluntarily convey a right to use their land. See 15

U.S.C. § 717f(h).

Based on the issuance of the Order, the Adorers

refused to grant Transco an easement on the land to

begin construction.3 On April 14, 2017, Transco

initiated condemnation proceedings against them in

the Eastern District of Pennsylvania, pursuant to the

NGA and Federal Rule of Civil Procedure 71.1. Two

months later, given that the Adorers had failed to

answer the complaint or file any sort of responsive

motion, Transco filed an “Emergency Motion for

Default Judgment and for Possession of Rights of Way

in Unopposed Condemnation Action,” and soon after

moved for a preliminary injunction for possession of

those rights of way, which the Adorers opposed. The

District Court then issued an order granting Transco’s

The Adorers aver that they have “consistently and repeatedly

denied all monetary offers from Transco to acquire their Property

and made it clear that, as a matter of religious conviction, no

amount of money would change their mind.” Adorers Br. 14.

App. 10

right to condemn the relevant section of the Adorers’

land on July 7. On August 23, the District Court

entered a preliminary injunction granting Transco

access to and the rights of way on the Adorers’ land

upon the posting of a bond in the amount of $329,220

(which Transco paid one week later).

The Adorers did not object, appeal or seek rehearing

regarding any order issued related to these

condemnation proceedings.

Instead, on July 14, 2017, a week after the District

Court issued the order granting Transco’s right to

condemn, the Adorers filed their own complaint against

FERC in the Eastern District of Pennsylvania seeking

declaratory judgment, alleging that FERC violated

their rights under RFRA, and additionally seeking

injunctive relief preventing the Pipeline Project from

running across their land. They later filed an amended

complaint reiterating the same claims, listing

additional plaintiffs, and adding Transco as a

defendant.4

We need not reach the issue of whether a holder of a section 7

certificate fully assumes the role of a state actor when exercising

eminent domain rights. While RFRA, by its terms, only applies to

state actors, see 42 U.S.C. § 2000bb-1 (“Government shall not

substantially burden a person’s exercise of religion . . . .”), Transco

did not raise a state-actor defense in its briefs or even invoke one

in response to questioning at oral argument, see Oral Argument at

30:22–31:25, Adorers of the Blood of Christ v. F.E.R.C., No.

17-3163, http://www.ca3.uscourts.gov/oral-argument-recordings.

Thus, the issue of whether an entity in Transco’s position qualifies

as a state actor—which we have previously recognized is an open

question in our circuit, see Goadby v. Phila. Elec. Co., 639 F.2d 117,

120 n.2 (3d Cir. 1981)—is one we will leave for another day.

App. 11

In the amended complaint, the Adorers claimed that

allowing Transco to complete the Pipeline Project

would interfere with their ability to use their land in a

manner consistent with their religious beliefs. In

particular, the Adorers alleged that the drilling and

subsequent extraction of natural gas from wells in the

land would cause leakage of methane. This leakage,

they contended, would contribute to global warming in

a manner contrary to their religious beliefs. The

Adorers also alleged that the expansion of natural gas

would be harmful to the environment by accelerating

global warming and consequently harming the Earth

and humans.

On September 28, 2017, the District Court in the

RFRA action granted FERC’s and Transco’s motions to

dismiss for lack of subject matter jurisdiction. The

court held that RFRA did not allow the Adorers to

circumvent the specific procedure prescribed by the

NGA for challenging a FERC order. In other words, the

Adorers’ RFRA claim did not change the basic fact that,

under the NGA, “no entity may seek judicial review of

a FERC order unless it first sought rehearing from the

agency.” App. 8. Because the Adorers had failed to seek

FERC rehearing, the court concluded that it was

foreclosed from hearing their claims. The Adorers then

filed this appeal.

App. 12

II5

According to the Adorers, the District Court erred in

dismissing the complaint for lack of subject matter

jurisdiction because RFRA grants them a statutory

right to assert an appropriate claim in district court.

The NGA, they contend, cannot be used to foreclose

that statutory right because Congress explicitly

provisioned RFRA to supersede all other Federal law.

Thus, to the extent that RFRA and the NGA conflict,

the Adorers argue that the latter must yield. While we

agree that the NGA would have to necessarily yield to

RFRA if the two statutes indeed conflicted, we conclude

that the two statutes do not conflict. Rather, the NGA

merely provides for complementary procedural

requirements that a claimant must adhere to when

exercising their RFRA right to a “judicial proceeding.”

42 U.S.C. § 2000bb-1(c).

“When reviewing an order dismissing a claim for

lack of subject matter jurisdiction, we exercise plenary

review over legal conclusions and review findings of

fact for clear error.” White-Squire v. U.S. Postal Serv.,

592 F.3d 453, 456 (3d Cir. 2010).

We begin by examining the two statutory schemes

that the Adorers argue are in conflict. Section 7 of the

NGA grants FERC the authority to approve or deny the

construction of interstate natural gas pipelines. See 15

U.S.C. § 717f. Indeed, before a private developer can

“[E]very federal appellate court has a special obligation to ‘satisfy

itself not only of its own jurisdiction, but also that of the lower

courts in a cause under review[.]’” Bruce v. Warden Lewisburg

USP, 868 F.3d 170, 177 (3d Cir. 2017) (quoting Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). This Court

has jurisdiction pursuant to 28 U.S.C. § 1291.

App. 13

begin construction on any pipeline project, FERC must

grant the developer a “certificate of public convenience

and necessity,” id. § 717f(c)(1)(A)—also referred to as a

“section 7 certificate” or a “certificate.” FERC may

grant a certificate only upon a finding that the project

at issue will serve the public interest of convenience

and necessity. Id. § 717f(e). FERC may also “attach to

the issuance of the certificate . . . reasonable terms and

conditions as the public convenience and necessity may

require.” Id. § 717f(e).

Once FERC has issued a certificate to a developer,

the certificate holder has the ability to acquire “the

necessary right-of-way to construct, operate and

maintain a pipe line or pipe lines” from unwilling

landowners by eminent domain. Id. § 717f(h). As such,

any party who is “aggrieved” by a FERC certificate may

seek redress by petitioning the federal court of appeals,

which would have “exclusive” jurisdiction “to affirm,

modify, or set aside” the certificate, provided that the

party first seek rehearing before FERC. Id.

§ 717r(a)-(d); id. § 717r(b) (“Any party to a proceeding

under this chapter aggrieved by an order issued by the

Commission in such proceeding may obtain a review of

such order in the court of appeals of the United

States . . . by filing in such court, within sixty days

after the order of the Commission upon application for

rehearing[.]”).

RFRA, meanwhile, instructs that the “[g]overnment

shall not substantially burden a person’s exercise of

religion even if the burden results from a rule of

general applicability” unless the government

demonstrates that the burden “is the least restrictive

means” to further a “compelling government interest.”

App. 14

42 U.S.C. § 2000bb-1(a)–(b). The statute’s judicial relief

provision further provides that “[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 the government.” Id. § 2000bb-1(c).

III

The Adorers contend that the plain language of this

judicial relief provision grants them a statutory right

to assert their RFRA claim in district court. We

disagree. The NGA is a detailed statute, setting forth

specific provisions on the procedure by which approval

and subsequent review of a pipeline project may be

attained. The statute provides that “[a]ny party . . .

aggrieved by an order issued by the Commission . . .

may obtain a review of such order in the court of

appeals of the United States . . . by filing in such court,

within sixty days after the order of the Commission

upon application for rehearing.” 15 U.S.C. § 717r(b).

Once issued, the FERC order was undoubtedly under

the exclusive purview of the NGA’s provision for

appellate review of the circuit courts of appeals. See id.

RFRA, on the other hand, provides that “[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 the government.” 42 U.S.C. § 2000bb-1(c)

(emphasis added). Nowhere does the text specifically

confer jurisdiction to the federal district courts to hear

RFRA claims.6

Were we to interpret RFRA’s reference to a “judicial proceeding”

as necessarily requiring a district court hearing, we would have to

App. 15

As such, the NGA’s procedural regime is controlling

here. It explicitly states that jurisdiction is “exclusive”

with “the court[s] of appeals of the United States.” 15

U.S.C. § 717r(b). Moreover, the statute’s exhaustion

provision, requiring that objections to FERC’s order be

“urged before the Commission in the application for

rehearing unless there is reasonable ground for failure

so to do” before appellate review, id., 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. 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.

Besides, even if the NGA did not expressly preclude

jurisdiction in this case, we would nonetheless find that

it did so implicitly under the two-step framework

conclude that the NGA unlawfully conflicted with RFRA. See 42

U.S.C. § 2000bb-3(a) (“This chapter applies to all Federal law, and

the implementation of that law, whether statutory or otherwise,

and whether adopted before or after November 16, 1993.”). But the

NGA’s procedural requirements, which permit parties to seek

review in a court of appeals following an initial agency hearing,

qualify as a “judicial proceeding” under RFRA. Although an agency

proceeding alone would not qualify as such a “judicial proceeding,”

we conclude that the NGA’s “FERC + Court of Appeals” framework

so qualifies. In this sense, then, the NGA and RFRA do not conflict

with each other. Rather, the NGA simply lays out what procedural

rules a claimant must adhere to when exercising their RFRA right

to a “judicial proceeding” in the pipeline context.

App. 16

provided in Thunder Basin Coal v. Reich, 510 U.S. 200

(1994). At the first step, the court asks whether

Congress’ intent to preclude district court jurisdiction

is “fairly discernible in the statutory scheme,” based on

an examination of the statute’s text, structure, and

purpose. Id. at 207. The second step, in turn, asks

whether plaintiffs’ claims “are of the type Congress

intended to be reviewed within this statutory

structure.” Id. at 212. At this stage the court considers

three factors: (1) whether the statutory scheme

“foreclose[s] all meaningful judicial review;” (2) the

extent to which the plaintiff’s claims are “wholly

collateral” to the statute’s review provision; and

(3) whether “agency expertise could be brought to bear

on the . . . questions presented.” Id. at 212–13.

Here, Congress’ intent to vest jurisdiction in circuit

courts is “fairly discernible in the” NGA. See Thunder

Basin, 510 U.S. at 207 (setting forth first prong of

two-part test). Only “the court of appeals of the United

States” where the natural gas company is located or

has its principal place of business or the District of

Columbia Circuit may “affirm, modify, or set aside [a

FERC] order in whole or in part.” § 717r(b). By

challenging the permissibility of the Pipeline Project

under RFRA, the Adorers are seeking to “modify or set

aside” FERC’s order—a matter the NGA places in the

“exclusive” purview of the court of appeals, only after

administrative exhaustion.

At step two, we think the Adorers’ claims “are of the

type Congress intended to be reviewed within this

statutory structure.” Thunder Basin, 510 U.S. at 212.

First, the statutory authority, the NGA, does not

foreclose all meaningful judicial review because it vests

App. 17

the courts of appeals with jurisdiction to review FERC

orders. See id. at 212–13. Second, the claims asserted

here are not “wholly collateral” because they “inhere in

the controversy;” that is, if the Adorers are successful

in their administrative challenge, the FERC order will

be modified or set aside. Id. Finally, although the

constitutional claims may be outside of FERC’s

expertise, this is tempered by the court of appeals’s

review, which regularly resolves constitutional issues.

See Massieu v. Reno, 91 F.3d 416, 420 n.4 (3d Cir.

1996) (“[T]he [Thunder Basin] Court’s fundamental

point, we think, was that both statutory and

constitutional claims could be meaningfully addressed

in the court of appeals.”); see also Elgin v. Dep’t of

Treas., 567 U.S. 1, 19 (2012) (“We see nothing

extraordinary in a statutory scheme that vests

reviewable factfinding authority in a non-Article III

entity that has jurisdiction over an action but cannot

finally decide the legal question to which the facts

pertain.”).

We are therefore not convinced that “the plain

language of RFRA” grants the Adorers, Adorers Br. 22,

the statutory right to assert their RFRA claim in a

federal district court. As the Supreme Court has

explained, the general “principle” that, “when federal

law creates a private right of action . . . district courts

possess federal-question jurisdiction under § 1331,” is

one that does not “endure[]” where “Congress divests

federal courts of their § 1331 adjudicatory authority.”

Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 378–79

(2012). Thus, we reject the Adorers’ contention that the

District Court committed an error of law when it

applied the provisions of the NGA to conclude it lacked

App. 18

subject matter jurisdiction to hear their substantive

RFRA claims.7

Our sister circuits also agree. In American Energy

Corporation v. Rockies Express Pipeline LLC, the Sixth

Circuit concluded that the NGA’s reticulated procedure

provides that the “relevant court of appeals . . . has

‘exclusive’ jurisdiction ‘to affirm, modify, or set aside

[FERC’s] order in whole or in part’” and that “no entity

may seek judicial review of a FERC order unless it first

sought rehearing from the agency.” 622 F.3d 602, 605

This analysis is consistent with our decision in Francis v. Mineta,

505 F.3d 266 (3d Cir. 2007). In Francis, we noted that “Congress

did not intend RFRA to subsume other statutory schemes,” and

thereby acknowledged that “nothing in RFRA alters the exclusive

nature of Title VII with regard to employees’ claims” because of

“Title VII’s exclusive and comprehensive scheme.” Id. at 270. The

Court concluded that, despite the plaintiff’s attempt to invoke a

RFRA claim, Title VII affords plaintiffs “the exclusive remedy for

job-related claims of federal religious discrimination.” Id. at 272.

Judge Stapleton’s Concurrence in Francis, with which the

Majority did “not disagree”, id. at 272 n.7, is of particular

relevance here. Judge Stapleton relied on Brown v. General

Services Administration, 425 U.S. 820 (1976) to highlight the

Supreme Court’s analysis in enunciating that Title VII provides

“the exclusive, pre-emptive [sic] administrative and judicial

scheme for the redress of federal employment discrimination.” Id.

at 272 (Stapleton, J., concurring) (quoting Brown, 425 U.S. at 829).

As Judge Stapleton observed, the Supreme Court opined that Title

VII should supersede general statutes under the canon of statutory

interpretation that resolves tension between specific and general

statutes, favoring specific statutes. Francis, 505 F.3d at 272

(Stapleton, J., concurring). In addition, the Supreme Court

reasoned that, as a practical matter, Title VII’s remedial

provisions would be entirely undermined “if a plaintiff could

circumvent its procedural requirements by ‘the simple expedient

of putting a different label on the pleadings.’” Id. (quoting Brown,

425 U.S. at 833).

App. 19

(6th Cir. 2010) (internal citations omitted). The court

emphasized that “[e]xclusive means exclusive, and the

[NGA] nowhere permits an aggrieved party otherwise

to pursue collateral review of a FERC certificate in

state court or federal district court.” Id.; see also La Voz

Radio de la Comunidad v. F.C.C., 223 F.3d 313, 319

(6th Cir. 2000) (concluding that RFRA “does not

provide that the ‘judicial proceeding’ must be in the

district court as opposed to a designated court of

appeals” and reasoning that “Congress has equipped

the FCC with an impressive arsenal of remedies,” of

which the “effectiveness . . . would be largely nullified

if [plaintiffs] could simply run to the district court and

enjoin the FCC from utilizing them”); Gen. Fin. Corp.

v. F.T.C., 700 F.2d 366, 368 (7th Cir. 1983) (“You may

not bypass the specific method that Congress has

provided for reviewing adverse agency action simply by

suing the agency in federal district court under 1331 or

1337; the specific statutory method, if adequate, is

exclusive.”).

Indeed, the Supreme Court has long held that the

Federal Power Act’s (“FPA”), statutory review scheme,

16 U.S.C. § 825l, which is materially identical to the

NGA’s,8 “necessarily preclude[s] de novo litigation

between the parties of all issues inhering in the

controversy, and all other modes of judicial review,”

and that challenges brought in the district court

outside that scheme are therefore “impermissible

collateral attacks.” City of Tacoma v. Taxpayers of

The FPA, 16 U.S.C. § 791a, is a statutory scheme recognized as

“substantially identical” to the NGA and subject to

“interchangeabl[e]” precedent. Ark. La. Gas Co. v. Hall, 453 U.S.

571, 578 n.7 (1981).

App. 20

Tacoma, 357 U.S. 320, 336, 341 (1958); see also Me.

Council of the Atl. Salmon Fed. v. Nat’l Me. Fisheries

Serv., 858 F.3d 690, 693 (1st Cir. 2017) (Souter, J.,

sitting by designation) (“The Supreme Court has made

clear that the jurisdiction provided by [the Federal

Power Act’s jurisdictional provision] is ‘exclusive,’ not

only to review the terms of the specific FERC order, but

over any issue ‘inhering in the controversy.’” (quoting

City of Tacoma, 357 U.S. at 336)).

Thus, the District Court did not err in concluding

that it lacked subject matter jurisdiction.

The Adorers further 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.” Adorers Br. 41-42. We disagree.9

Our conclusion here should not be interpreted as precluding the

filing of a proper freestanding due process claim pursuant to Mathews

v. Eldridge, 424 U.S. 319, 349 (1976). “The ultimate balance involves

a determination as to when, under our constitutional system,

judicial-type procedures must be imposed upon administrative action

to assure fairness.” Id. at 348. This is consistent with Thunder Basin’s

long-standing observation that a district court may hear claims that

are considered “‘wholly collateral’ to a statute’s review provisions and

outside the agency’s expertise,” where a finding of preclusion

potentially forecloses all meaningful judicial review. 510 U.S. at

213–14 (quoting Heckler v. Ringer, 466 U.S. 602, 618 (1984)). When

such a claim arises, it “may be challenged in a district court,” as long

as it is “entirely collateral” and “the petitioner ha[s] made a colorable

showing that full postdeprivation relief could not be obtained.” Id. at

214 (citations omitted).

App. 21

The Adorers’ contention is unavailing because

FERC may hear any claim raised before it—even

potential violations of federal law. There is no inherent

inhibition to FERC hearing a potential claim in the

first instance because it is statutorily granted the

authority to hear any claim from an affected party

when raised timely. It may adjudicate these claims in

a way it believes appropriate. If an affected party

disagrees with the adjudication of her claim, she has

the opportunity for direct appeal before a federal court

of appeals.10

As proof of this process, Transco submitted an Order of

Rehearing issued by FERC related to the Pipeline Project (“28(j)

Letter”). The 28(j) Letter indicates that the plaintiffs in that

matter requested rehearing on an order issued by FERC

authorizing construction and operation of the Pipeline Project,

which challenged several potential violations of federal laws. As a

result of following the NGA’s procedural process, the plaintiffs’

claims will be heard by the District of Columbia Circuit Court of

Appeals. In our view, the 28(j) Letter provides evidence that, when

the procedural process of the NGA is adhered to, all

issues—whether dispositive or potential—may be addressed at the

agency level. If a party is not satisfied with the result at that level,

she may seek review in a court of appeals—as the parties in the

28(j) Letter have done. Had the Adorers likewise taken advantage

of the NGA’s regime, we see no reason to conclude that they would

not have had an opportunity to review their substantive RFRA

claims on two levels: at the administrative and the appellate level.

Moreover, just as an objector has a fundamental right to raise

concerns prompted by religious beliefs at the administrative level,

so, too, FERC bears a commensurate responsibility to carefully

consider those objections and to treat respectfully the expression

of sincerely-held religious beliefs. See Masterpiece Cakeshop, Ltd.

v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1732 (2018) (an

objector is “entitled to a neutral decisionmaker who w[ill] give full

and fair consideration to h[er] religious objection”). Likewise,

although we hold today that such objections must be raised in the

App. 22

If the Adorers had participated in the

administrative process, FERC may have denied or

modified the conditions of Transco’s certificate. Or, if

FERC failed to do so, the reviewing court of appeals

may have ruled in the Adorers’ favor. Under these

circumstances, the Adorers would have, at the very

least, had the opportunity to seek the relief they so

desire today.11 But because they failed to engage with

the NGA’s procedural regime, we are without

jurisdiction to hear the Adorers’ claims.12

For the foregoing reasons, we hold that a claim

under RFRA, 42 U.S.C. § 2000bb-1(c), brought

pursuant to the general jurisdictional grant of a federal

question under 28 U.S.C. § 1331, does not abrogate or

provide an exception to a specific and exclusive

administrative forum under FERC’s exclusive regime to preserve

appellate review, nothing in this opinion should be construed to

call into question the sincerity of the deeply-held religious beliefs

expressed by the Adorers.

While RFRA expressly provides for damages, see 42 U.S.C.

§ 2000bb-1, it appears that the NGA circumscribes FERC’s

authority to issue a ruling on the merits of a certificate of public

convenience and necessity, see 15 U.S.C. § 717f(e), and the Court

of Appeals is similarly limited to “affirming, modifying, or setting

aside” the certificate, id. § 717r(b). Thus, the ability of a RFRA

claimant to receive damages through the NGA process may indeed

bear on “whether the claims can be afforded meaningful review.”

Thunder Basin, 510 U.S. at 207. The Adorers did not request

damages in their complaint; hence, we need not reach this issue

today.

Because we hold that neither the District Court nor this Court

have jurisdiction to adjudicate the Adorers’ substantive RFRA

claim, we need not address their alternative arguments.

App. 23

jurisdictional provision prescribed by Congress for

judicial review of an agency’s action. Accordingly, we

shall affirm the order of the District Court granting

Transco’s and FERC’s motions to dismiss.

App. 24

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

CIVIL ACTION

NO. 17-3163

[Filed September 28, 2017]

_________________________________________

ADORERS OF THE BLOOD OF CHRIST, )

UNITED STATES PROVINCE, et al.

)

FEDERAL ENERGY REGULATORY

)

COMMISSION, et al.

)

_________________________________________ )

MEMORANDUM

SCHMEHL, J. /s/ JLS

September 28, 2017

Plaintiffs brought this action claiming that

defendant Federal Energy Regulatory Commission

(“FERC”) and its Commissioner, defendant Cheryl A.

LaFleur, violated the Religious Freedom Restoration

Act (“RFRA”), 42 U.S.C. §§ 2000bb, et seq. by issuing an

Order authorizing defendant Transcontinental Gas

Pipeline Company, LLC. (“Transco”) to forcibly take

and use land owned by the plaintiffs as part of an

interstate fossil fuel pipeline, known as the Atlantic

Sunrise Pipeline (the “Pipeline”). Plaintiffs also allege

App. 25

that Transco violated the RFRA by forcibly taking

plaintiffs’ land by condemnation. Before the Court are

plaintiffs’ amended motion for a preliminary injunction

and the defendants’ motions to dismiss for lack of

subject matter jurisdiction pursuant to Rule 12(b)(1) of

the Federal Rules of Civil Procedure. For the reasons

that follow, the motions to dismiss will be granted and

the plaintiffs’ amended motion for a preliminary

injunction will be denied as moot.

Rule 12(b)(1) challenges are either facial or factual

attacks. Kestelboym v. Chertoff, 538 F. Supp. 2d 813,

815 (D.N.J. 2008). “A facial attack questions the

sufficiency of the pleading,” and “[i]n reviewing a facial

attack, a trial court accepts the allegations in the

complaint as true.” Id. However, “when a court reviews

a complaint under a factual attack, the allegations

have no presumptive truthfulness, and the court that

must weigh the evidence has discretion to allow

affidavits, documents, and even a limited evidentiary

hearing to resolve disputed jurisdictional facts.” Id. See

also Carpet Group Int’l v. Oriental Rug Imps. Ass’n,

Inc., 227 F.3d 62, 69 (3d Cir. 2000); Mortensen v. First

Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.

1977). In evaluating a Rule 12(b)(1) motion, “the trial

court is free to weigh the evidence and satisfy itself as

to the existence of its power to hear the case.”

Mortensen, 549 F.2d at 891. See also Carpet Group

Int’l, 227 F.3d at 69. “[T]he existence of disputed

material facts will not preclude the trial court from

evaluating for itself the merits of jurisdictional claims.”

Mortensen, 549 F.2d at 891. The plaintiff has the

burden of proving that jurisdiction does in fact exist.

Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir.

2006) (quoting Mortensen, 549 F.2d at 891).

App. 26

The Amended Complaint alleges that plaintiff

Adorers of the Blood of Christ (“Adorers”) 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. The individually named plaintiffs

are all Sisters of the Adorers.” [ECF 10, ¶ 1.] Plaintiffs

claim the construction and operation of the Pipeline

through land they own in Columbia, Pennsylvania

would violate their free exercise of religion protected by

RFRA. They seek a preliminary injunction enjoining

Transco from constructing and operating the Pipeline

on their property until this Court has considered their

RFRA claim.

On March 31, 2015, Transco filed an application

with FERC under section 7(c) of the Natural Gas Act

(“NGA”), 15 U.S.C. 717f(c), for authorization to

construct and operate the Pipeline. On February 3,

2017, FERC issued a “Certificate of Public Convenience

and Necessity” (“FERC Order”) 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. Many interested parties, including

affected landowners, requested a rehearing of the

FERC Order. Significantly, the Adorers did not present

their RFRA claims (or raise any other objections) to

FERC either initially or by requesting a rehearing. To

date, FERC has not addressed the merits of the

requests for rehearing of the FERC Order.

App. 27

The Adorers refused to voluntarily convey their

land. As a result, on April 14, 2017, Transco filed a

“Verified Complaint in Condemnation of Property

Pursuant to Fed. R. Civ. P. 71.1” in this Court to

condemn a portion of the Adorers’ property to allow

Transco to construct, install and operate the Pipeline

on the Adorers’ property. The Adorers neither

responded to the Verified Complaint nor to Transco’s

motion for partial summary judgment on the issue of

Transco’s right to condemn. After an evidentiary

hearing on July 7, 2017, this Court granted Transco’s

motion for Partial Summary Judgment. On August 23,

2017, this Court granted possession of the Adorers’

property to Transco. Transcontinental Gas Pipe Line

Company, LLC. v. Permanent Easement for 1.02 Acres,

No. 17-cv-1725. Doc. 29 (E.D.Pa. Aug. 23, 2017).

The RFRA provides, in pertinent part:

Government shall not substantially burden a

person’s exercise of religion even if the burden

results from a rule of general applicability,

except … [g]overnment 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.

42 U.S.C. § 2000bb—1(a), (b).

In their motions to dismiss for lack of subject matter

jurisdiction, FERC and Transco join in arguing that

under the NGA, this Court lacks subject matter

App. 28

jurisdiction over plaintiffs’ RFRA claims. As the law in

this area is particularly well-settled, the Court agrees.

As stated succinctly by the Court of Appeals for the

Sixth Circuit:

The Natural Gas Act sets forth a highly

reticulated procedure for obtaining, and

challenging, a FERC certificate to build an

interstate pipeline. A party aggrieved by such an

order may apply for rehearing before FERC. 15

U.S.C. § 717r(a). And no entity may seek judicial

review of a FERC order unless it first sought

rehearing from the agency. Id. Once FERC

concludes the rehearing, the aggrieved party

may petition for review either in the D.C. Circuit

or in the circuit where the natural gas company

is located or has its principal place of

business—in this instance, the Third or Fifth

Circuit. 15 U.S.C. § 717r(b); R.2 at 3 (the

pipeline company is a Delaware LLC and has its

principal place of business in Texas). The

relevant court of appeals thereafter has

‘exclusive’ jurisdiction ‘to affirm, modify, or set

aside [FERC’s] order in whole or in part.’ 15

U.S.C. § 717r(b); see also 15 U.S.C. § 717r(d)(1).

Exclusive 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.

********

Now that FERC has issued its final order and

now that the coal companies have appealed that

App. 29

order to the D.C. Circuit, the matter lies within

that court’s exclusive jurisdiction. 15 U.S.C.

§ 717r; see also Williams Natural Gas Co. v. City

of Oklahoma City, 890 F.2d 255, 262 (10th

Cir.1989). The coal companies thus may not seek

what amounts to a second round of collateral

review of FERC’s order here. See Williams

Natural Gas Co., 890 F.2d at 262.

Am. Energy Corp. v. Rockies Express Pipeline LLC, 622

F.3d 602, 605-606 (6th Cir. 2010) (emphasis added); 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.”) In short, “§ 717r’s exclusivity provision

forecloses judicial review of a FERC certificate in

district court.” Town of Dedham v. Federal Energy

Regulatory Commission, No. 15-12352, 2015 WL

4274884, at *1 (D. Mass. July 15, 2015).

Here, plaintiffs 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. [ECF 22, at 19.] Having failed to do so,

plaintiffs are barred by 15 U.S.C. §§ 717r(a) and

717r(b) from pursuing what amounts to collateral

review of the FERC Order before this Court.

App. 30

Plaintiffs argue that such a result conflicts with the

“sweeping super-statute” nature of RFRA and further

argue that the fact Congress made RFRA applicable “to

all Federal law, and the implementation of that law,

whether statutory or otherwise, and whether adopted

before or after November 16, 1993,” …“unless such law

explicitly excludes such application by reference to this

chapter,” means that RFRA supersedes the exclusive

jurisdiction provisions of the NGA. 42 U.S.C.

§ 2000bb-3(a),(b).

Specifically, plaintiffs argue that the result conflicts

with 42 U.S.C. § 2000bb-1(c) which states:

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. Standing to assert a claim or

defense under this section shall be

governed by the general rules of standing

under article III of the Constitution.

42 U.S.C. § 2000bb-1(c). According to plaintiffs, if they

are now foreclosed from proceeding with their RFRA

claims before this Court, they will have been deprived

of their opportunity to assert their RFRA claims in a

“judicial proceeding,” as guaranteed by § 2000bb-1(c).

In a case directly on point and not referenced by

plaintiffs in their opposition papers, Judge Bartle of

this Court rejected these very same arguments. Radio

Luz v. Federal Communications Commission, 88

App. 31

F. Supp. 2d 372, aff’d sub nom. 213 F. 3d 629 (3d Cir.

2000). Specifically, the Court stated:

The government argues that this court lacks

subject matter jurisdiction over the claims

raised in plaintiffs’ complaints. It contends that

pursuant to 47 U.S.C. § 402, it is the United

States Court of Appeals, not the district court,

that has exclusive jurisdiction to determine the

validity of FCC regulations. In essence, it is the

government’s position that the radio

broadcasters are seeking to litigate their claims

in the wrong forum. Instead of proceeding in the

district court, the government maintains that

plaintiffs should first seek to have their

constitutional and statutory challenges decided

by the FCC and then seek judicial review of any

adverse order of the FCC by appealing directly

to the court of appeals. [citation omitted]. . . .

Plaintiffs assert that this court has jurisdiction

because of the federal questions involved and

pursuant to 42 U.S.C. § 2000bb. That section

sets forth Congress’s findings in support of

RFRA and its purposes for enacting the statute.

Nowhere does the statute specifically confer

jurisdiction on federal district courts to hear all

RFRA claims. Rather, it states, ‘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.’

42 U.S.C. § 2000bb–1(c). Presumably, plaintiffs

are relying on 28 U.S.C. § 1331, which grants

federal question jurisdiction to the district

courts. The general jurisdictional grant of

App. 32

§ 1331, however, does not trump a specific

jurisdictional provision adopted by

Congress for review of an agency action.

See General Finance Corp. v. FTC, 700 F.2d 366,

368 (7th Cir. 1983) (Posner, J.). In General

Finance, the targets of an investigation by the

Federal Trade Commission filed suit in the

district court seeking a declaratory judgment

and an injunction to prevent the agency from

investigating their activities. The Court of

Appeals for the Seventh Circuit faced the

question of whether the district court had

jurisdiction over the suit pursuant to § 1331

despite the fact that Congress had prescribed

that investigatory targets may obtain judicial

review of the agency’s investigations only when

the agency brings a subpoena enforcement

action against the target. See id. at 368–69. The

Court concluded that the district court did not

have jurisdiction. ‘You may not bypass the

specific method that Congress has provided for

reviewing adverse agency action simply by suing

the agency in federal district court under [§]

1331 ... the specific statutory method, if

adequate, is exclusive.’ Id. at 368.

Id. at 374-76 (emphasis added.); see also La Voz Radio

de la Communidad v. Federal Communications

Commission, 223 F.3d 313, 319 (6th Cir. 2000) (RFRA

“provides that a person who believes that his ‘religious

exercise’ has been ‘burdened’ in violation of RFRA ‘may

assert that violation as a claim or defense in a judicial

proceeding . . . .’ It does not provide that the ‘judicial

proceeding’ must be in the district court as opposed to

a designated court of appeals.”) (citation omitted).

App. 33

Williams Nat. Gas Co. v. City of Okla. City, 890 F.2d

255, 261-62 (10th Cir. 1989) (court “would be hard

pressed to formulate a doctrine with a more expansive

scope” than the rule that § 717r(b) “preclude[s] de novo

litigation between the parties of all issues inhering in

the controversy.”) (emphasis added); Me. Council of

the Atl. Salmon Fed. v. Nat’l Marine Fisheries Serv.,

No. 16-2155, 2017 WL 2456812, at *2 (1st Cir. June 7,

2017) (Souter, J., sitting by designation) (“The Supreme

Court has made it clear that the jurisdiction provided

by [the Federal Power Act’s exclusive jurisdiction

provision] is ‘exclusive,’ not only to review the terms of

the specific FERC order, but over any issue ‘inhering

in the controversy.’”) (emphasis added).

Plaintiffs’ RFRA claims clearly “inhere in the

controversy” between plaintiffs and FERC. Moreover,

plaintiffs would have had the opportunity to present

their RFRA claims in a judicial proceeding before the

appropriate Court of Appeals had they first sought a

rehearing before FERC. Having failed to participate at

all at FERC, or raise any objections at FERC, either

initially or through a rehearing as did the other

interested parties, plaintiffs cannot now argue that

they have been deprived of the ability to assert their

RFRA claims in a judicial proceeding. No matter how

sweeping RFRA may be, plaintiffs simply may not

bypass the specific procedure established by Congress

in the NGA by bringing a RFRA suit against FERC in

this Court. See Mims v. Arrow Fin. Servs., LLC, 565

U.S. 368, 378-79 (“[D]istrict courts possess

federal-question jurisdiction” under 28 U.S.C. § 1331

when federal law creates a private right of action,

“unless [like here] Congress divests federal courts of

their [section] 1331 adjudicatory authority.” Very

App. 34

significantly, unlike the NGA, RFRA does not contain

an exclusive jurisdictional provision. As none of the

cases cited by plaintiffs supports the proposition that

RFRA supersedes the NGA’s exclusive jurisdiction

provision, the motions to dismiss for lack of subject

matter jurisdiction are granted and the plaintiffs’

motion for a preliminary injunction is denied as moot.

App. 35

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

CIVIL ACTION

NO. 17-3163

[Filed September 28, 2017]

_________________________________________

ADORERS OF THE BLOOD OF CHRIST, )

UNITED STATES PROVINCE, et al.

)

FEDERAL ENERGY REGULATORY

)

COMMISSION, et al.

)

_________________________________________ )

ORDER

AND NOW, this 28th day of September, 2017, upon

consideration of the defendants’ motions to dismiss, the

plaintiffs’ amended motion for a preliminary injunction

and all responses and replies thereto, it is hereby

ORDERED that:

1. Defendant Transcontinental Gas Pipeline

Company’s Motion to Dismiss [Doc. 15] is

GRANTED.

2. Defendant Federal Energy Regulatory

Commission and Cheryl A. LaFleur’s Motion to

Dismiss [Doc. 13] is GRANTED.

3. The Amended Complaint

DISMISSED with prejudice.

[Doc.

10]

4. Plaintiffs’ motion for a preliminary injunction

[Doc. 11] is DENIED as moot.

App. 36

5. Plaintiffs’ amended motion for a preliminary

injunction [Doc. 21] is DENIED as moot.

6. Defendant Transcontinental Gas Pipe Line’s

Motion to Intervene [Doc. 3] is DENIED as

moot.

BY THE COURT:

/s/ Jeffrey L. Schmehl

JEFFREY L. SCHMEHL, J.

App. 37

APPENDIX C

15 U.S.C. § 717 - Regulation of natural gas

companies

(b)

TRANSACTIONS

WHICH

PROVISIONS

CHAPTER APPLICABLE

The provisions of this chapter shall apply to the

transportation of natural gas in interstate commerce,

to the sale in interstate commerce of natural gas for

resale for ultimate public consumption for domestic,

commercial, industrial, or any other use, and to

natural-gas companies engaged in such transportation

or sale, and to the importation or exportation of natural

gas in foreign commerce and to persons engaged in

such importation or exportation, but shall not apply to

any other transportation or sale of natural gas or to the

local distribution of natural gas or to the facilities used

for such distribution or to the production or gathering

of natural gas.

15 U.S.C. § 717f - Construction, extension, or

abandonment of facilities

NECESSITY

(1)

(A) No natural-gas company or person which

will be a natural-gas company upon completion

App. 38

of any proposed construction or extension shall

engage in the transportation or sale of natural

gas, subject to the jurisdiction of the

Commission, or undertake the construction or

extension of any facilities therefor, or acquire or

operate any such facilities or extensions thereof,

unless there is in force with respect to such

natural-gas company a certificate of public

convenience and necessity issued by the

Commission authorizing such acts or operations:

Provided, however, That if any such natural-gas

company or predecessor in interest was bona

fide engaged in transportation or sale of natural

gas, subject to the jurisdiction of the

Commission, on February 7, 1942, over the route

or routes or within the area for which

application is made and has so operated since

that time, the Commission shall issue such

certificate without requiring further proof that

public convenience and necessity will be served

by such operation, and without further

proceedings, if application for such certificate is

made to the Commission within ninety days

after February 7, 1942. Pending the

determination of any such application, the

continuance of such operation shall be lawful.

(B) In all other cases the Commission shall set

the matter for hearing and shall give such

reasonable notice of the hearing thereon to all

interested persons as in its judgment may be

necessary under rules and regulations to be

prescribed by the Commission; and the

application shall be decided in accordance with

the procedure provided in subsection (e) of this

App. 39

section and such certificate shall be issued or

denied accordingly: Provided, however, That the

Commission may issue a temporary certificate in

cases of emergency, to assure maintenance of

adequate service or to serve particular

customers, without notice or hearing, pending

the determination of an application for a

certificate, and may by regulation exempt from

the requirements of this section temporary acts

or operations for which the issuance of a

certificate will not be required in the public

interest.

(2) The Commission may issue a certificate of public

convenience and necessity to a natural-gas company

for the transportation in interstate commerce of

natural gas used by any person for one or more

high-priority uses, as defined, by rule, by the

Commission, in the case of—

(A) natural gas sold by the producer to such

person; and

(B) natural gas produced by such person.

(e)

G RANTING

OF CERTIFICATE

CONVENIENCE AND NECESSITY

PUBLIC

Except in the cases governed by the provisos contained

in subsection (c)(1) of this section, a certificate shall be

issued to any qualified applicant therefor, authorizing

the whole or any part of the operation, sale, service,

construction, extension, or acquisition covered by the

application, if it is found that the applicant is able and

willing properly to do the acts and to perform the

App. 40

service proposed and to conform to the provisions of

this chapter and the requirements, rules, and

regulations of the Commission thereunder, and that

the proposed service, sale, operation, construction,

extension, or acquisition, to the extent authorized by

the certificate, is or will be required by the present or

future public convenience and necessity; otherwise

such application shall be denied. The Commission shall

have the power to attach to the issuance of the

certificate and to the exercise of the rights granted

thereunder such reasonable terms and conditions as

the public convenience and necessity may require.

(h) RIGHT OF EMINENT DOMAIN FOR CONSTRUCTION

OF PIPELINES, ETC.

When 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 or pipe

lines for the transportation of natural gas, and the

necessary land or other property, in addition to rightof-way, for the location of compressor stations, pressure

apparatus, or other stations or equipment necessary to

the proper operation of such pipe line or pipe lines, it

may acquire the same by the exercise of the right of

eminent domain in the district court of the United

States for the district in which such property may be

located, or in the State courts. The practice and

procedure in any action or proceeding for that purpose

in the district court of the United States shall conform

as nearly as may be with the practice and procedure in

similar action or proceeding in the courts of the State

App. 41

where the property is situated: Provided, That the

United States district courts shall only have

jurisdiction of cases when the amount claimed by the

owner of the property to be condemned exceeds $3,000.

15 U.S.C. § 717o - Administrative powers of

Commission; rules, regulations, and orders

The Commission shall have power to perform any

and all acts, and to prescribe, issue, make, amend, and

rescind such orders, rules, and regulations as it may

find necessary or appropriate to carry out the

provisions of this chapter. Among other things, such

rules and regulations may define accounting, technical,

and trade terms used in this chapter; and may

prescribe the form or forms of all statements,

declarations, applications, and reports to be filed with

the Commission, the information which they shall

contain, and the time within which they shall be filed.

Unless a different date is specified therein, rules and

regulations of the Commission shall be effective thirty

days after publication in the manner which the

Commission shall prescribe. Orders of the Commission

shall be effective on the date and in the manner which

the Commission shall prescribe. For the purposes of its

rules and regulations, the Commission may classify

persons and matters within its jurisdiction and

prescribe different requirements for different classes of

persons or matters. All rules and regulations of the

Commission shall be filed with its secretary and shall

be kept open in convenient form for public inspection

and examination during reasonable business hours.

App. 42

15 U.S.C. § 717r - Rehearing and review

(a) APPLICATION FOR REHEARING; TIME

Any person, State, municipality, or State commission

aggrieved by an order issued by the Commission in a

proceeding under this chapter to which such person,

State, municipality, or State commission is a party may

apply for a rehearing within thirty days after the

issuance of such order. The application for rehearing

shall set forth specifically the ground or grounds upon

which such application is based. Upon such application

the Commission shall have power to grant or deny

rehearing or to abrogate or modify its order without

further hearing. Unless the Commission acts upon the

application for rehearing within thirty days after it is

filed, such application may be deemed to have been

denied. No proceeding to review any order of the

Commission shall be brought by any person unless

such person shall have made application to the

Commission for a rehearing thereon. Until the record

in a proceeding shall have been filed in a court of

appeals, as provided in subsection (b), the Commission

may at any time, upon reasonable notice and in such

manner as it shall deem proper, modify or set aside, in

whole or in part, any finding or order made or issued by

it under the provisions of this chapter.

(b) REVIEW OF COMMISSION ORDER

Any party to a proceeding under this chapter aggrieved

by an order issued by the Commission in such

proceeding may obtain a review of such order in the

court of appeals of the United States for any circuit

wherein the natural-gas company to which the order

relates is located or has its principal place of business,

App. 43

or in the United States Court of Appeals for the

District of Columbia, by filing in such court, within

sixty days after the order of the Commission upon the

application for rehearing, a written petition praying

that the order of the Commission be modified or set

aside in whole or in part. A copy of such petition shall

forthwith be transmitted by the clerk of the court to

any member of the Commission and thereupon the

Commission shall file with the court the record upon

which the order complained of was entered, as provided

in section 2112 of title 28. Upon the filing of such

petition such court shall have jurisdiction, which upon

the filing of the record with it shall be exclusive, to

affirm, modify, or set aside such order in whole or in

part. No objection to the order of the Commission shall

be considered by the court unless such objection shall

have been urged before the Commission in the

application for rehearing unless there is reasonable

ground for failure so to do. The finding of the

Commission as to the facts, if supported by substantial

evidence, shall be conclusive. If any party shall apply

to the court for leave to adduce additional evidence,

and shall show to the satisfaction of the court that such

additional evidence is material and that there were

reasonable grounds for failure to adduce such evidence

in the proceedings before the Commission, the court

may order such additional evidence to be taken before

the Commission and to be adduced upon the hearing in

such manner and upon such terms and conditions as to

the court may seem proper. The Commission may

modify its findings as to the facts by reason of the

additional evidence so taken, and it shall file with the

court such modified or new findings, which is

supported by substantial evidence, shall be conclusive,

and its recommendation, if any, for the modification or

App. 44

setting aside of the original order. The 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, subject to review by the

Supreme Court of the United States upon certiorari or

certification as provided in section 1254 of title 28.

28 U.S.C. § 1254 - Courts of appeals; certiorari;

certified questions

Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or

after rendition of judgment or decree;

28 U.S.C. § 1291 - Final decisions of district courts

The courts of appeals (other than the United States

Court of Appeals for the Federal Circuit) shall have

jurisdiction of appeals from all final decisions of the

district courts of the United States, the United States

District Court for the District of the Canal Zone, the

District Court of Guam, and the District Court of the

Virgin Islands, except where a direct review may be

had in the Supreme Court. The jurisdiction of the

United States Court of Appeals for the Federal Circuit

shall be limited to the jurisdiction described in sections

1292(c) and (d) and 1295 of this title.

App. 45

28 U.S.C. § 1331 - Federal question

The district courts shall have original jurisdiction of

all civil actions arising under the Constitution, laws, or

treaties of the United States.

28 U.S.C. § 1343 - Civil rights and elective

franchise

(a) The district courts shall have original jurisdiction

of any civil action authorized by law to be commenced

by any person:

(4) To recover damages or to secure equitable or

other relief under any Act of Congress providing for

the protection of civil rights, including the right to

vote.

42 U.S.C. § 1988 - Proceedings in vindication of

civil rights

(a) APPLICABILITY OF STATUTORY AND COMMON LAW

The jurisdiction in civil and criminal matters conferred

on the district courts by the provisions of titles 13, 24,

and 70 of the Revised Statutes for the protection of all

persons in the United States in their civil rights, and

for their vindication, shall be exercised and enforced in

conformity with the laws of the United States, so far as

such laws are suitable to carry the same into effect; but

in all cases where they are not adapted to the object, or

are deficient in the provisions necessary to furnish

suitable remedies and punish offenses against law, the

common law, as modified and changed by the

App. 46

constitution and statutes of the State wherein the court

having jurisdiction of such civil or criminal cause is

held, so far as the same is not inconsistent with the

Constitution and laws of the United States, shall be

extended to and govern the said courts in the trial and

disposition of the cause, and, if it is of a criminal

nature, in the infliction of punishment on the party

found guilty.

(b) ATTORNEY’S FEES

In any action or proceeding to enforce a provision of

sections 1981, 1981a, 1982, 1983, 1985, and 1986 of

this title, title IX of Public Law 92–318 [20 U.S.C. 1681

et seq.], the Religious Freedom Restoration Act of 1993

[42 U.S.C. 2000bb et seq.], the Religious Land Use and

Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc

et seq.], title VI of the Civil Rights Act of 1964 [42

U.S.C. 2000d et seq.], or section 12361 of title 34, the

court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s

fee as part of the costs, except that in any action

brought against a judicial officer for an act or omission

taken in such officer’s judicial capacity such officer

shall not be held liable for any costs, including

attorney’s fees, unless such action was clearly in excess

of such officer’s jurisdiction.

In awarding an attorney’s fee under subsection (b) in

any action or proceeding to enforce a provision of

section 1981 or 1981a of this title, the court, in its

discretion, may include expert fees as part of the

attorney’s fee.

App. 47

42 U.S.C. § 2000bb - Congressional findings and

declaration of purposes

(a) FINDINGS The Congress finds that—

(1) the framers of the Constitution, recognizing free

exercise of religion as an unalienable right, secured

its protection in the First Amendment to the

Constitution;

(2) laws “neutral” toward religion may burden

religious exercise as surely as laws intended to

interfere with religious exercise;

(3) governments should not substantially burden

religious exercise without compelling justification;

(4) in Employment Division v. Smith, 494 U.S. 872

(1990) the Supreme Court virtually eliminated the

requirement that the government justify burdens on

religious exercise imposed by laws neutral toward

religion; and

(5) the compelling interest test as set forth in prior

Federal court rulings is a workable test for striking

sensible balances between religious liberty and

competing prior governmental interests.

(b) PURPOSES The purposes of this chapter are—

(1) to restore the compelling interest test as set

forth in Sherbert v. Verner, 374 U.S. 398 (1963) and

Wisconsin v. Yoder, 406 U.S. 205 (1972) and to

guarantee its application in all cases where free

exercise of religion is substantially burdened; and

App. 48

(2) to provide a claim or defense to persons whose

religious exercise is substantially burdened by

government.

42 U.S.C. § 2000cc - Protection of land use as

religious exercise

(a) SUBSTANTIAL BURDENS

(1) GENERAL RULE No government shall impose or

implement a land use regulation in a manner that

imposes a substantial burden on the religious

exercise of a person, including a religious assembly

or institution, unless the government demonstrates

that imposition of the burden on that person,

assembly, or institution—

(A) is in furtherance of

governmental interest; and

compelling

(B) is the least restrictive means of furthering

that compelling governmental interest.

(2) SCOPE OF APPLICATION This subsection applies

in any case in which—

(A) the substantial burden is imposed in a

program or activity that receives Federal

financial assistance, even if the burden results

from a rule of general applicability;

(B) the substantial burden affects, or removal of

that substantial burden would affect, commerce

with foreign nations, among the several States,

or with Indian tribes, even if the burden results

from a rule of general applicability; or

App. 49

implementation of a land use regulation or

system of land use regulations, under which a

government makes, or has in place formal or

informal procedures or practices that permit the

government to make, individualized

assessments of the proposed uses for the

property involved.

(b) DISCRIMINATION AND EXCLUSION

(1) EQUAL TERMS

No government shall impose or implement a land

use regulation in a manner that treats a religious

assembly or institution on less than equal terms

with a nonreligious assembly or institution.

(2) NONDISCRIMINATION

No government shall impose or implement a land

use regulation that discriminates against any

assembly or institution on the basis of religion or

religious denomination.

(3) EXCLUSIONS AND LIMITS No Government Shall

Impose or Implement a Land Use Regulation

That—

(A) totally excludes religious assemblies from a

jurisdiction; or

(B) unreasonably limits religious assemblies,

institutions, or structures within a jurisdiction.

App. 50

18 C.F.R. § 157.10 - Interventions and protests.

(a) Notices of applications, as provided by § 157.9, will

fix the time within which any person desiring to

participate in the proceeding may file a petition to

intervene, and within which any interested regulatory

agency, as provided by § 385.214 of this chapter,

desiring to intervene may file its notice of intervention.

(1) Any person filing a petition to intervene or

notice of intervention shall state specifically

whether he seeks formal hearing on the application.

(2) Any person may file to intervene on

environmental grounds based on the draft

environmental impact statement as stated at

§ 380.10(a)(1)(i) of this chapter. In accordance with

that section, such intervention will be deemed

timely as long as it is filed within the comment

period for the draft environmental impact

statement.

(3) Failure to make timely filing will constitute

grounds for denial of participation in the absence of

extraordinary circumstances or good cause shown.

(4) Protests may be filed in accordance with

§ 385.211 of this chapter within the time permitted

by any person who does not seek to participate in

the proceeding.

App. 51

18 C.F.R. § 385.214 Intervention (Rule 214).

(a) Filing.

(1) The Secretary of Energy is a party to any

proceeding upon filing a notice of intervention in

that proceeding. If the Secretary’s notice is not filed

within the period prescribed under Rule 210(b), the

notice must state the position of the Secretary on

the issues in the proceeding.

(2) Any State Commission, the Advisory Council on

Historic Preservation, the U.S. Departments of

Agriculture, Commerce, and the Interior, any state

fish and wildlife, water quality certification, or

water rights agency; or Indian tribe with authority

to issue a water quality certification is a party to

any proceeding upon filing a notice of intervention

in that proceeding, if the notice is filed within the

period established under Rule 210(b). If the period

for filing notice has expired, each entity identified

in this paragraph must comply with the rules for

motions to intervene applicable to any person under

paragraph (a)(3) of this section including the

content requirements of paragraph (b) of this

section.

(3) Any person seeking to intervene to become a

party, other than the entities specified in

paragraphs (a)(1) and (a)(2) of this section, must file

a motion to intervene.

(4) No person, including entities listed in

paragraphs (a)(1) and (a)(2) of this section, may

intervene as a matter of right in a proceeding

arising from an investigation pursuant to Part 1b of

this chapter.

App. 52

(b) Contents of motion.

(1) Any motion to intervene must state, to the

extent known, the position taken by the movant and

the basis in fact and law for that position.

(2) A motion to intervene must also state the

movant’s interest in sufficient factual detail to

demonstrate that:

(i) The movant has a right to participate which

is expressly conferred by statute or by

Commission rule, order, or other action;

(ii) The movant has or represents an interest

which may be directly affected by the outcome of

the proceeding, including any interest as a:

(A) Consumer,

(B) Customer,

(D) Security holder of a party; or

(iii) The movant’s participation is in the public

interest.

(3) If a motion to intervene is filed after the end of

any time period established under Rule 210, such a

motion must, in addition to complying with

paragraph (b)(1) of this section, show good cause

why the time limitation should be waived.

(1) If no answer in opposition to a timely motion to

intervene is filed within 15 days after the motion to

App. 53

intervene is filed, the movant becomes a party at

the end of the 15 day period.

(2) If an answer in opposition to a timely motion to

intervene is filed not later than 15 days after the

motion to intervene is filed or, if the motion is not

timely, the movant becomes a party only when the

motion is expressly granted.

(d) Grant of late intervention.

(1) In acting on any motion to intervene filed after

the period prescribed under Rule 210, the decisional

authority may consider whether:

(i) The movant had good cause for failing to file

the motion within the time prescribed;

(ii) Any disruption of the proceeding might

result from permitting intervention;

(iii) The movant’s interest is not adequately

represented by other parties in the proceeding;

(iv) Any prejudice to, or additional burdens

upon, the existing parties might result from

permitting the intervention; and

(v) The motion conforms to the requirements of

paragraph (b) of this section.

(2) Except as otherwise ordered, a grant of an

untimely motion to intervene must not be a basis

for delaying or deferring any procedural schedule

established prior to the grant of that motion.

App. 54

(3)

(i) The decisional authority may impose

limitations on the participation of a late

intervener to avoid delay and prejudice to the

other participants.

(ii) Except as otherwise ordered, a late

intervener must accept the record of the

proceeding as the record was developed prior to

the late intervention.

(4) If the presiding officer orally grants a motion for

late intervention, the officer will promptly issue a

written order confirming the oral order.

App. 55

APPENDIX D

80 Fed Reg. 20213

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. CP15–138–000; PF14–8–000]

[Dated April 15, 2015]

Transcontinental Gas Pipe Line Company, LLC;

Notice of Application

Take notice that on March 31, 2015,

Transcontinental Gas Pipe Line Company, LLC

(Transco), P.O. Box 1396, Houston, TX 77251–1396

filed an application pursuant to section 7 (c) of the

Natural Gas Act requesting authorization to construct

and operate its Atlantic Sunrise Project to provide

1,700,002 dekatherms per day of capacity from

northern Pennsylvania to Alabama. Specifically,

Transco requests authorization to construct (i) 57.3

miles of 30-inch diameter pipeline and 125.2 miles of

42-inch diameter pipeline in Pennsylvania; (ii) two new

compressor stations totaling 70,000 horsepower (hp) in

Pennsylvania; (iii) the addition of 62,000 hp at three

existing compressor stations in Pennsylvania and

Maryland; and (iv) to modify its existing system to

enable north-to-south flow, all as more fully set forth in

the application. The filing is available for review at the

Commission in the Public Reference Room or may be

viewed on the Commission’s Web site at http://

www.ferc.gov using the “eLibrary” link. Enter the

App. 56

docket number excluding the last three digits in the

docket number field to access the document. There is

an “eSubscription” link on the Web site that enables

subscribers to receive email notification when a

document is added to a subscribed docket(s). For

assistance, please contact FERC Online Support at

FERCOnlineSupport@ferc.gov or toll free at (866)

208–3676, or for TTY, contact (202) 502–8659.

Any questions regarding the proposed project

should be directed to Bill Hammons at

Transcontinental Gas Pipe Line Company, LLC, Post

Office Box 1396, Houston, TX 77251 or at (713)

215–2130 or Scott Turkington, Director, Rates &

Regulatory, Transcontinental Gas Pipe Line Company,

LLC, Post Office Box 1396, Houston, TX 77251–1396 or

at (713) 215–3391(phone), or scott.c.turkington@

williams.com.

On April 4, 2014, the Commission staff granted

Transco’s request to utilize the National

Environmental Policy Act (NEPA) Pre-Filing Process

and assigned Docket No. PF14–8–000 to staff activities

involving the project. Now, as of the filing of this

application on March 31, 2015, the NEPA Pre-Filing

Process for this project has ended. From this time

forward, this proceeding will be conducted in Docket

No. CP15–138–000, as noted in the caption of this

Notice.

Pursuant to section 157.9 of the Commission’s rules

(18 CFR 157.9), within 90 days of this Notice, the

Commission staff will either: Complete its

environmental impact statement (EIS) and place it into

the Commission’s public record (eLibrary) for this

proceeding; or issue a Notice of Schedule for

App. 57

Environmental Review. If a Notice of Schedule for

Environmental Review is issued, it will indicate, among

other milestones, the anticipated date for the

Commission staff’s issuance of the EIS for this

proposal. The filing of the EIS in the Commission’s

public record for this proceeding or the issuance of a

Notice of Schedule for Environmental Review will serve

to notify federal and state agencies of the timing for the

completion of all necessary reviews, and the

subsequent need to complete all federal authorizations

within 90 days of the date of issuance of the

Commission staff’s EIS.

There are two ways to become involved in the

Commission’s review of this project. First, any person

wishing to obtain legal status by becoming a party to

the proceedings for this project should, on or before the

comment date stated below, file with the Federal

Energy Regulatory Commission, 888 First Street NE.,

Washington, DC 20426, a motion to intervene in

accordance with the requirements of the Commission’s

Rules of Practice and Procedure (18 CFR 385.214 or

385.211) and the Regulations under the NGA (18 CFR

157.10). A person obtaining party status will be placed

on the service list maintained by the Secretary of the

Commission and will receive copies of all documents

filed by the applicant and by all other parties. A party

must submit 7 copies of filings made with the

Commission and must mail a copy to the applicant and

to every other party in the proceeding. Only parties to

the proceeding can ask for court review of Commission

orders in the proceeding.

However, a person does not have to intervene in

order to have comments considered. The second way to

App. 58

participate is by filing with the Secretary of the

Commission, as soon as possible, an original and two

copies of comments in support of or in opposition to this

project. The Commission will consider these comments

in determining the appropriate action to be taken, but

the filing of a comment alone will not serve to make the

filer a party to the proceeding. The Commission’s rules

require that persons filing comments in opposition to

the project provide copies of their protests only to the

party or parties directly involved in the protest.

Persons who wish to comment only on the

environmental review of this project should submit an

original and two copies of their comments to the

Secretary of the Commission. Environmental

commentors will be placed on the Commission’s

environmental mailing list, will receive copies of the

environmental documents, and will be notified of

meetings associated with the Commission’s

environmental review process. Environmental

commentors will not be required to serve copies of filed

documents on all other parties. However, the non-party

commentors will not receive copies of all documents

filed by other parties or issued by the Commission

(except for the mailing of environmental documents

issued by the Commission) and will not have the right

to seek court review of the Commission’s final order.

The Commission strongly encourages electronic

filings of comments, protests and interventions in lieu

of paper using the “eFiling” link at http://

www.ferc.gov. Persons unable to file electronically

should submit an original and 7 copies of the protest or

intervention to the Federal Energy Regulatory

App. 59

Commission, 888 First Street NE., Washington, DC

20426.

Comment Date: April 29, 2015.

Dated: April 8, 2015.

Kimberly D. Bose,

Secretary.

[FR Doc. 2015–08553 Filed 4–14–15; 8:45 am]

BILLING BODE 6717–01–P

App. 60

APPENDIX E

158 FERC ¶ 61,125

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners:

Cheryl A. LaFleur, Acting

Chairman;

Norman C. Bay, and Colette

D. Honorable.

Transcontinental Gas Pipe Line Company, LLC

Docket No. CP15-138-000

ORDER ISSUING CERTIFICATE

(Issued February 3, 2017)

1. On March 31, 2015, Transcontinental Gas Pipe Line

Company, LLC (Transco) filed an application under

section 7(c) of the Natural Gas Act (NGA)1 and Part

157 of the Commission’s regulations2 for authorization

to construct and operate its proposed Atlantic Sunrise

Project in Pennsylvania, Maryland, Virginia, North

Carolina, and South Carolina. The purpose of the

project is to increase firm incremental transportation

service on the Transco system by 1,700,002 dekatherms

(Dth) per day.

2. For the reasons discussed below, the Commission

grants Transco’s requested certificate authorizations,

subject to conditions.

15 U.S.C. § 717f(c) (2012).

18 C.F.R. pt. 157 (2016).

App. 61

I. Background

3. Transco,3 a Delaware limited liability company, is a

natural gas company4 that transports natural gas in

interstate commerce through its natural gas

transmission system

Transco is a wholly-owned subsidiary of Williams Partners

Operating LLC, which is a subsidiary of Williams Partners L.P.,

which is a subsidiary of the Williams Companies, Inc. On February

2, 2015, Williams Partners L.P. merged with and into Access

Midstream Partners, L.P. Transco’s subsidiaries are Cardinal

Operating Company, LLC; Cardinal Pipeline Company, LLC; Pine

Needle Operating Company, LLC; TransCardinal Company, LLC;

and TransCardinal LNG Company, LLC.

See 15 U.S.C. § 717a(6) (2012).

App. 62

[pp.71-72]

local laws, may prohibit or unreasonably delay the

construction or operation of facilities approved by this

Commission.233

VI.

Conclusion

174. The Commission on its own motion received and

made part of the record in this proceeding all evidence,

including the application, as supplemented, and

exhibits thereto, and all comments submitted, and

upon consideration of the record,

The Commission orders:

(A)

A certificate of public convenience and

necessity is issued to Transco, authorizing it to

construct and operate the proposed Atlantic Sunrise

Project, as described and conditioned herein, and as

more fully described in the application as

supplemented.

(B)

A certificate of public convenience and

necessity is issued under section 7(c) of the NGA

authorizing Transco to lease from Meade, as described

233

See 15 U.S.C. § 717r(d) (state or federal agency’s failure to act

on a permit considered to be inconsistent with Federal law); see

also Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 310 (1988)

(state regulation that interferes with FERC’s regulatory authority

over the transportation of natural gas is preempted) and Dominion

Transmission, Inc. v. Summers, 723 F.3d 238, 245 (D.C. Cir. 2013)

(noting that state and local regulation is preempted by the NGA to

the extent it conflicts with federal regulation, or would delay the

construction and operation of facilities approved by the

Commission).

App. 63

more fully in the body of this order and in the

application.

(C)

The certificate authority issued in Ordering

Paragraph (A) is conditioned on:

(1)

Transco’s proposed Atlantic Sunrise

Project being constructed and made

available for service within 3 years of the

date of this order, pursuant to section

157.20(b) of the Commission’s

regulations;

(2)

Transco’s compliance with all applicable

Commission regulations, particularly the

general terms and conditions set forth in

Parts 154, 157, and 284, and paragraphs

(a), (c), (e), and (f) of section 157.20 of the

Commission’s regulations;

(3)

Transco’s

compliance

with

the

environmental conditions listed in

Appendix C to this order; and

(4)

Transco’s execution of firm contracts for

volumes and service terms equivalent to

those in its precedent agreements, prior

to the commencement of construction.

(D)

Transco is required to maintain separate

accounting and reporting for the lease facilities,

including separate accounting of the fuel costs due to

compression, as explained in the body of this order, in

a manner to comply with the requirements of section

154.309 of the Commission’s regulations.

App. 64

(E)

Transco’s initial incremental reservation

charge under Rate Schedule FT as recalculated for the

project to reflect the removal of variable costs is

approved, as discussed above.

(F)

Transco is required to charge its generally

applicable Rate Schedule FT Zones 4, 5 and 6,

commodity charge as part of its initial recourse rate.

(G)

Transco’s request for use of system fuel

retention and electric power rates is approved.

(H) Transco shall notify the Commission’s

environmental staff by telephone, e-mail, and/or

facsimile of any environmental noncompliance

identified by other federal, state, or local agencies on

the same day that such agency notifies Transco.

Transco shall file written confirmation of such

notification with the Secretary of the Commission

(Secretary) within 24 hours.

By the Commission.

(SEAL)

Kimberly D. Bose,

Secretary.

App. 65

[p.81]

Appendix C

Environmental Conditions

As recommended in the EA, this authorization

includes the following conditions:

As recommended in the final environmental impact

statement (EIS) and otherwise amended herein, this

authorization includes the following conditions. The

section number in parentheses at the end of a condition

corresponds to the section number in which the

measure and related resource impact analysis appears

in the final EIS.

1. Transco shall follow the construction procedures

and mitigation measures described in its

application and supplements (including responses

to staff data requests) and as identified in the EIS,

unless modified by the order. Transco must:

a. request any modification to these procedures,

measures, or conditions in a filing with the

Secretary of the Commission (Secretary);

b. justify each modification relative to site-specific

conditions;

c. explain how that modification provides an equal

or greater level of environmental protection than

the original measure; and

d. receive approval in writing from the Director of

the Office of Energy Projects (OEP) before

using that modification.

App. 66

2. The Director of OEP has delegated authority to take

whatever steps are necessary to ensure the

protection of all environmental resources during

construction and operation of the Atlantic Sunrise

Project. This authority shall allow:

a. the modification of conditions of the order; and

b. the design and implementation of any additional

measures deemed necessary (including stopwork authority) to assure continued compliance

with the intent of the environmental conditions

as well as the avoidance or mitigation of adverse

environmental impact resulting from project

construction (and operation).

3. Prior to any construction, Transco shall file an

affirmative statement with the Secretary, certified

by a senior company official, that all company

personnel, environmental inspectors (EI), and

contractor personnel will be informed of the EI’s

authority and have been or will be trained on the

implementation of the environmental mitigation

measures appropriate to their jobs before becoming

involved with construction and restoration

activities.

4. The authorized facility location(s) shall be as shown

in the EIS, as supplemented by filed alignment

sheets. As soon as they are available, and

before the start of construction, Transco shall

file with the Secretary any revised detailed survey

alignment maps/sheets at a scale not smaller than

1:6,000 with station positions for all facilities

approved by this order. All requests for

modifications of environmental conditions of this

App. 67

order or site-specific clearances must be written and

must reference locations designated on these

alignment maps/sheets.

Transco’s exercise of eminent domain authority

granted under the Natural Gas Act (NGA) section

7(h) in any condemnation proceedings related to

this order must be consistent with these authorized

facilities and locations. Transco’s right of eminent

domain granted under NGA section 7(h) does not

authorize it to increase the size of its natural gas

facilities to accommodate future needs or to acquire

a right-of-way for a pipeline to transport a

commodity other than natural gas.

5. Transco shall file with the Secretary detailed

alignment maps/sheets and aerial photographs at a

scale not smaller than 1:6,000 identifying all route

realignments or facility relocations, and staging

areas, pipe storage yards, new access roads, and

other areas that would be used or disturbed and

have not been previously identified in filings with

the Secretary. Approval for each of these areas must

be explicitly requested in writing. For each area, the

request must include a description of the existing

land use/cover type, documentation of landowner

approval, whether any cultural resources or

federally listed threatened or endangered species

would be affected, and whether any other

environmentally sensitive areas are within or

abutting the area. All areas shall be clearly

identified on the maps/sheets/aerial photographs.

Each area must be approved in writing by the

Director of OEP before construction in or near

that area.

App. 68

This requirement does not apply to extra workspace

allowed by Transco’s Upland Erosion Control,

Revegetation, and Maintenance Plan and/or minor

field realignments per landowner needs and

requirements that do not affect other landowners or

sensitive environmental areas such as wetlands.

Examples of alterations requiring approval include

all route realignments and facility location changes

resulting from:

a. implementation of cultural resources mitigation

measures;

b. implementation of endangered, threatened, or

special concern species mitigation measures;

c. recommendations

authorities; and

state

regulatory

d. agreements with individual landowners that

affect other landowners or could affect sensitive

environmental areas.

6. Within 60 days of the acceptance of the

certificate and before construction begins,

Transco shall file an Implementation Plan with the

Secretary for review and written approval by the

Director of OEP. Transco must file revisions to the

plan as schedules change. The plan shall identify:

a. how Transco will implement the construction

procedures and mitigation measures described

in its application and supplements (including

responses to staff data requests), identified in

the EIS, and required by this order;

App. 69

b. how Transco will incorporate these requirements

into the contract bid documents, construction

contracts (especially penalty clauses and

specifications), and construction drawings so

that the mitigation required at each site is clear

to on-site construction and inspection personnel;

c. the number of EIs assigned per spread, and how

the company will ensure that sufficient

personnel are available to implement the

environmental mitigation;

d. company personnel, including EIs and

contractors, who will receive copies of the

appropriate material;

e. the location and dates of the environmental

compliance training and instructions Transco

will give to all personnel involved with

construction and restoration (initial and

refresher training as the project progresses and

personnel change), with the opportunity for OEP

staff to participate in the training session(s);

f. the company personnel (if known) and specific

portion of Transco’s organization having

responsibility for compliance;

g. the procedures (including use of contract

penalties) Transco will follow if noncompliance

occurs; and

h. for each discrete facility, a Gantt or PERT chart

(or similar project scheduling diagram), and

dates for:

App. 70

ii.

iii.

iv.

the completion of all required surveys and

reports;

the environmental compliance training of

on-site personnel;

the start of construction; and

the start and completion of restoration.

7. Transco shall employ a team of EIs (i.e., two or

more or as may be established by the Director of

OEP) per construction spread. The EI(s) shall be:

a. responsible for monitoring and ensuring

compliance with all mitigation measures

required by this order and other grants, permits,

certificates, or other authorizing documents;

b. responsible for evaluating the construction

c o nt r ac t o r ’ s i m p l e m e n t a t i o n o f t he

environmental mitigation measures required in

the contract (see condition 6 above) and any