Adorers of the Blood of Chris v. Transcontinental Gas Pipe Line ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-2898
_____________
ADORERS OF THE BLOOD OF CHRIST UNITED
STATES PROVINCE,
n/k/a Adorers of the Blood of Christ, United States Region,
Successor by Merger to Adorers of the Blood of Christ,
Province of Columbia, PA, Inc. formerly known as
Saint Joseph Convent Motherhouse of the Adorers of the
Blood of Christ,
Columbia, Pennsylvania, Inc. formerly known as Saint
Joseph's Convent,
Mother House of Sister Adorers of the Most Precious
Blood, Columbia, PA
also known as Sisters Adorers of the Most Precious Blood,
St. Joseph Convent, Columbia, PA;
SISTER SARA DWYER;
SISTER MARIA HUGHES;
SISTER DANI BROUGHT;
SISTER MARY ALAN WURTH;
SISTER THERESE MARIE SMITH,
Appellants
v.
TRANSCONTINENTAL GAS PIPE LINE CO LLC
_____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No.: 5-20-cv-05627)
District Judge: Honorable Jeffrey L. Schmehl
_____________________________________
Argued
September 15, 2022
(Filed: November 8, 2022)
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges.
J. Dwight Yoder [Argued]
Sheila V. O’Rourke
Gibbel, Kraybill & Hess
2933 Lititz Pike
P.O. Box 5349
Lancaster, PA 17606
Counsel for Appellants
Elizabeth U. Witmer [Argued]
Saul Ewing Arnstein & Lehr
1200 Liberty Ridge Drive
Suite 200
Wayne, PA 19087
Patrick F. Nugent
Sean T. O’Neill
Shane P. Simon
Saul Ewing Arnstein & Lehr
2
1500 Market Street
Centre Square West, 38th Floor
Philadelphia, PA 19102
Counsel for Appellee
_________
OPINION OF THE COURT
_________
RENDELL, Circuit Judge.
This is the second attempt by the Adorers of the Blood
of Christ (“Adorers”), a religious group opposed to the
extraction, transportation, and use of fossil fuels, to challenge
the route, construction, and operation of an interstate gas
pipeline on their property as violative of their rights under the
Religious Freedom and Restoration Act (“RFRA”). Their first
attempt sought an injunction before the pipeline was
constructed; this attempt seeks money damages after its
completion. In both cases, the District Court dismissed the
complaint on the ground that the Adorers’ failure to present
their claims to the Federal Energy Regulatory Commission
(“FERC”) at any time during the years-long administrative
proceedings, which ultimately authorized the pipeline,
foreclosed their claim under the Natural Gas Act’s (“NGA”)
exclusive-review framework. We affirmed the District Court’s
order in the first action, Adorers of the Blood of Christ v. FERC
(Adorers I), 897 F.3d 187 (3d Cir. 2018), and will do so in this
case as well.
3
I.
As we explained in connection with the Adorers’ first
case, under the NGA, FERC has the sole authority to issue a
“certificate of public convenience and necessity,” which
permits private gas pipeline developers to build, operate, and
maintain new interstate gas pipelines. 15 U.S.C.
§ 717f(c)(1)(A). To determine whether to issue such a
certificate, FERC must consider the public’s input, and, to that
end, it must provide reasonable notice to various parties who
would be affected by the pipeline and provide those parties
with an opportunity to be heard. Id. § 717f(c)(1)(B). “If FERC
ultimately issues the certificate following the requisite hearing,
any aggrieved person may seek judicial review of its
decision—either in the Court of Appeals for the District of
Columbia Circuit or the circuit wherein the natural gas
company is located or has its principal place of business.”
Adorers I, 897 F.3d at 189 (citing 15 U.S.C. § 717r(b)). Before
petitioning an appropriate court of appeals for review of a
FERC order, however, the aggrieved party must first seek
rehearing before FERC. 15 U.S.C. § 717r(a). Failure to seek
rehearing before FERC bars the aggrieved party from later
obtaining judicial review. Id.
II.
The Adorers collectively comprise an order of Roman
Catholic nuns whose deeply-held religious beliefs require them
“to protect, preserve, and treasure the land that” they own and
“to protect and preserve Earth.” App. at 18 ¶ 1. They own
property in Lancaster County, Pennsylvania, and use and
maintain that property in accordance with their religious
4
beliefs, including for agricultural purposes. Among other
things, the Adorers believe the extraction, transportation, and
use of fossil fuels accelerates global warming and climate
change and, thus, defiles God’s creation. Any use of their
property to facilitate the extraction, transportation, and use of
fossil fuels, violates their religious beliefs and practices. So,
in 2014, when Transcontinental Gas Pipe Line Company
(“Transco”) notified the Adorers that it was in the early stages
of designing a new 183-mile long, 42-inch diameter interstate
gas pipeline, known as the “Central Penn Line South,” part of
the “Atlantic Sunrise Pipeline,” to transport 1.7 million
dekatherms of gas through their property each day, the Adorers
explained to Transco’s right-of-way agent that this would
violate their religious beliefs and that they would not entertain
any offer by Transco to purchase a right-of-way through their
property. Nearly a year later, Transco filed a formal
application with FERC to obtain a certificate of public
convenience and necessity. See 15 U.S.C. § 717f(c).
FERC then proceeded to publish numerous notices,
over the course of more than thirty months, as part of the
pipeline approval process and as required under the NGA and
FERC regulations. It mailed letters about the project to
thousands of parties, solicited comments from the public, and
hosted four initial open meetings to discuss, among other
things, the proposed route of the pipeline and the effect of the
pipeline’s construction and operation on various stakeholders.
Adorers I, 897 F.3d at 191-92. Although FERC received
hundreds of written comments and heard scores of comments
and objections from interested parties at its initial meetings, the
Adorers neither provided comments to FERC nor did they
attend any of those meetings. Id.
5
Even when FERC contacted the Adorers directly, they
remained silent. On October 22, 2015, FERC delivered a letter
to the Adorers describing various pipeline routes under
consideration, including routes that would directly impact their
property, and invited them to participate in the environmental
review process where the Adorers could comment on the
project and request modifications or accommodations,
including the rerouting of the pipeline.1 Id. The Adorers,
however, did not respond to the letter, did not participate in the
process, and did not otherwise formally oppose the project as
it remained under review before FERC. Id.
On February 3, 2017, after receiving still further written
comments and oral comments from hundreds of speakers at
environmental review hearings, and after Transco altered the
pipeline’s route at least 132 times in response to public
comment—in total changing the original proposed route by
about fifty percent—FERC issued a certificate to Transco
authorizing it to build, operate, and maintain the pipeline.
Transcon. Gas Pipe Line Co., 158 FERC ¶ 61,125, 2017 WL
496024, ¶ 151 (Feb. 3, 2017). The certificate also authorized
1
Indeed, some property owners obtained meaningful relief
because of their participation in this process. In response to
property owner concerns, FERC attached certain conditions to
the issuance of any certificate to Transco including, for
example, that Transco agree to “compensate [organic farm]
landowners” if their organic farm certifications were impacted
by the pipeline, Transcon. Gas Pipe Line Co., 158 FERC ¶
61,125, 2017 WL 496024, ¶ 101, (Feb. 3, 2017), and that
Transco agree to provide “monetary compensation to the
occupants of affected noise sensitive areas in the project area,”
id. ¶ 167.
6
Transco, as provided under the NGA, to use eminent domain
to take rights-of-way from any property owners unwilling to
sell a right-of-way to Transco voluntarily. Id. ¶ 67; see 15
U.S.C. § 717f(h) (providing that “[w]hen any holder of a
certificate of public convenience and necessity cannot acquire
by contract, or is unable to agree with the owner of property to
the compensation to be paid for, the necessary right-of-way to
construct, operate, and maintain a pipe line . . . it may acquire
the same by the exercise of the right of eminent domain”).
While the final pipeline route avoided some properties because
of fruitful discussion among the property owners, FERC, and
Transco during the certification process, the final pipeline
route, not surprisingly, wended through the Adorers’ property.
On April 14, 2017, Transco filed a complaint in federal
court under Federal Rule of Civil Procedure 71.1 (setting forth
the procedure for condemning real property by eminent
domain) and § 717f(h) of the NGA seeking an order of
condemnation to permit it to take title to rights-of-way in the
Adorers’ property necessary to build and operate the pipeline.
Despite service, the Adorers failed to answer or otherwise
respond to the complaint until after Transco filed a motion for
default judgment and sought an emergency order from the
District Court authorizing it to take immediate possession of
the rights-of-way.
Ultimately, the District Court granted default judgment
to Transco regarding its substantive entitlement to the rights-
of-way but deferred a decision on Plaintiff’s request for
possession until after an evidentiary hearing.2
2
The District Court later granted full possession of the right-
of-way to Transco and awarded “just compensation” to the
7
One week after the District Court granted default
judgment to Transco and just three days before the District
Court’s evidentiary hearing, the Adorers filed a separate suit in
the U.S. District Court for the Eastern District of Pennsylvania
claiming for the first time in any official filing, that FERC, and
Transco—who was later added as a defendant—violated their
rights under RFRA. They urged that under RFRA, they had
the right to raise a claim or defense for “appropriate relief.”
See 42 U.S.C. § 2000bb-1(c) (“A person whose religious
exercise has been burdened in violation of this section may
assert that violation as a claim or defense in a judicial
proceeding and obtain appropriate relief against a
government.”). And they contended that this gave them the
right to institute an action in federal court rather than proceed
Adorers but rejected their claim for additional damages, which
the Adorers claimed arose from the same purported violation
of RFRA at issue in this case. The District Court explained
that not only was the Adorers’ RFRA claim irrelevant to the
question of the fair market value of the right-of-way, but also
that it was a counterclaim for compensatory damages beyond
the ken of condemnation proceedings under Fed. R. Civ. P.
71.1. Under Fed. R. Civ. P. 71.1, the District Court noted, “[a]
defendant waives all objections and defenses not stated in its
answer. No other pleading or motion asserting an additional
objection or defense is allowed” and “Courts have repeatedly
upheld Rule 71.1’s limitation on additional pleadings such as
counterclaims.” App. at 523 (internal quotation marks
omitted) (quoting Fed. R. Civ. P. 71.1(e)(3)). As the Adorers
failed to answer the condemnation complaint and their claim
for additional damages was not cognizable under Fed. R. Civ.
P. 71.1, the District Court rejected the claim. The Adorers did
not appeal that ruling.
8
before FERC. The Adorers sought an injunction permanently
enjoining Transco from completing its project.
Transco moved to dismiss the Adorers’ complaint for
lack of subject matter jurisdiction and the District Court
granted the motion. The District Court concluded that “RFRA
did not allow the Adorers to circumvent the specific procedure
prescribed by [Congress under] the NGA for challenging a
FERC order” and “[b]ecause the Adorers had failed to seek
FERC rehearing . . . it was foreclosed from hearing their
claims.” Adorers I, 897 F.3d at 193. Adorers appealed and we
affirmed the District Court’s order. Id. at 198.
In so doing, we rejected the Adorers’ contention that
RFRA somehow gave them the statutory right to assert their
claim in federal district court rather than before FERC. We
reasoned that the NGA’s “exhaustion provision . . . makes clear
Congress’ intent to confer exclusive jurisdiction to the NGA
by a highly reticulated statute nullifying any procedural
alternatives an aggrieved party may otherwise have.” Id. at
195. We continued,
Indeed, the NGA is the exclusive
remedy for matters relating to the
construction of interstate natural
gas pipelines. It forms the
paradigm by which FERC operates
in matters related to interstate
natural gas pipelines. By failing to
avail themselves of the protections
thereunder, the Adorers have
foreclosed judicial review of their
substantive RFRA claims.
9
Id.
We also rejected the Adorers’ “claim that, even if they
had indulged the administrative process, they could not have
asserted their rights under RFRA within the NGA because they
would have had ‘to have anticipated a possible RFRA violation
and affirmatively acted to become a party to a private third
party’s administrative application.’” Id. at 197. In rejecting
this claim, we observed that “FERC may hear any claim raised
before it—even potential violations of federal law.” Id. And
if FERC incorrectly adjudicated such a claim, the aggrieved
claimant “has the opportunity for direct appeal before a federal
court of appeals.” Id. Had the Adorers “participated in the
administrative process, FERC may have denied or modified the
conditions of Transco’s certificate . . . . [and] [u]nder these
circumstances, the Adorers would have, at the very least, had
the opportunity to seek the [injunctive] relief they so desire.”
Id. at 198.
Soon after the pipeline was completed and put into
service, the Adorers filed a new complaint in the District Court.
Although, as the District Court noted, this new complaint
“[wa]s nearly identical to the previous action filed by the
Adorers for [an] alleged RFRA violation[]” the Adorers made
three changes. App. at 7. First, the Adorers named only
Transco as a defendant. Second, rather than seek injunctive
relief as they unsuccessfully attempted to in Adorers I, they
sought money damages for the RFRA violation. App. at 41 ¶
129. Third, the Adorers alleged, somewhat differently from
their position in Adorers I, that the source of the substantial
burden on their religious exercise arose not from “FERC’s
decision to force the Adorers to use land they own to
accommodate a fossil fuel pipeline,” Compl. at 9 ¶ 45, Adorers
10
I, No. 5:17-cv-03163-JLS (E.D. Pa. July 14, 2017), ECF No. 1
(emphasis added), but instead, from “Transco’s action in
placing the Pipeline in to [sic] service using the Adorers’ land,”
App. at 37 ¶ 111 (emphasis added), thus, suggesting that their
claim was not ripe until this occurred.3
Transco again moved to dismiss this new complaint for
lack of subject matter jurisdiction and the District Court again
granted the motion. The District Court, applying our holding
in Adorers I, concluded that given Adorers’ admission that
“they not only failed to apply for a rehearing before FERC but
failed to present their RFRA claims in any manner to the
FERC, and ultimately [failed] to [appeal their claim to] the
appropriate Court of Appeals . . . . the Adorers . . . foreclosed
judicial review of their substantive RFRA claims.” App. 9, 10
(citation omitted). The District Court rejected the Adorers’
argument that “because they are seeking monetary damages . .
. as opposed to the injunctive relief they sought in Adorers I . .
. and that money damages are not available through FERC’s
administrative process, this Court has subject matter
jurisdiction.” App. at 10.
The Adorers filed this timely appeal.
3
Compare Compl. at 2 ¶ 1, Adorers I, No. 5:17-cv-03163-JLS
(E.D. Pa. July 14, 2017), ECF No. 1 (“FERC’s action in issuing
the FERC Order approving and authorizing Transco to forcibly
take and use land owned by the Adorers . . . will, if allowed to
proceed, substantially burden the Adorers’ exercise of their
deeply held religious beliefs”) with App. 33 ¶ 80 (“[T]here was
no burden placed on the Adorers’ religious exercise at the time
the FERC Order was issued.”).
11
III.4
A.
As we did in Adorers I, we find the Supreme Court’s
opinion in City of Tacoma v. Taxpayers of Tacoma to provide
the controlling principle in this case, 357 U.S. 320 (1958).
There, the City of Tacoma was to construct a power plant on
the Cowlitz River under a license issued by the Federal Power
Commission (“FPC”). Id. at 324. The building of the project
required the City to take land used as a fish hatchery and owned
by the State of Washington. Id. at 325. Unlike the situation in
this case, the State there did object and unsuccessfully opposed
the grant of the license by the FPC. Id. at 325-26. The State
later moved successfully in the Superior Court of Washington
for an order enjoining the City from proceeding to construct
the project or sell any of its revenue bonds, an order which was
then ultimately appealed and affirmed by the Supreme Court
of Washington. Id. at 331-32.
The United States Supreme Court granted certiorari and
reversed. It noted:
This statute is written in simple
words of plain meaning and leaves
no room to doubt the congressional
purpose and intent. It can hardly
4
We have jurisdiction under 28 U.S.C. § 1291. We review
threshold matters of justiciability de novo. See In re Horizon
Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 632
(3d Cir. 2017); Hartig Drug Co. v. Senju Pharm. Co., 836 F.3d
261, 267-68, 267 n.8 (3d Cir. 2016).
12
be doubted that Congress, acting
within its constitutional powers,
may prescribe the procedures and
conditions under which, and the
courts in which, judicial review of
administrative orders may be had.
So acting, Congress in § 313(b)
prescribed the specific, complete
and exclusive mode for judicial
review of the Commission’s
orders. It there provided that any
party aggrieved by the
Commission’s order may have
judicial review, upon all issues
raised before the Commission in
the motion for rehearing, by the
Court of Appeals which ‘shall
have exclusive jurisdiction to
affirm, modify, or set aside such
order in whole or in part,’ and that
‘[t]he judgment and decree of the
court, affirming, modifying, or
setting aside, in whole or in part,
any such order of the Commission,
shall be final . . . . It thereby
necessarily precluded de novo
litigation between the parties of all
issues inhering in the controversy,
and all other modes of judicial
review.
Id. at 335-36 (emphasis added).
13
The Court then concluded that the State’s attempts to
obtain recourse from the Washington state courts constituted
“impermissible collateral attacks” on the approval by the FPC,
which was reviewed and affirmed by the U.S. Court of Appeals
for the Ninth Circuit. Id. at 341. As we observed in Adorers
I, “the Supreme Court has long held that . . . statutory review
scheme[s] [like that of the NGA, which channel all claims
relating to the certification or licensing of interstate energy
projects through an exclusive judicial review scheme], . . .
‘necessarily preclude[] de novo litigation between the parties
of all issues inhering in the controversy, and all other modes of
judicial review.’” Adorers I, 897 F.3d at 197 (quoting Tacoma,
357 U.S. at 336, 341) (emphasis added). The rule that any
claim raising issues “inhering in” the certification of a new
interstate gas pipeline must first be presented to FERC—or else
forfeited—also applies to claims that “could and should have
been” raised during the certification process. Tacoma, 357
U.S. at 339. In commenting on this principle, the Tenth Circuit
has remarked that it “would be hard pressed to formulate a
doctrine with a more expansive scope.” Williams Nat. Gas Co.
v. City of Okla. City, 890 F.2d 255, 262 (10th Cir. 1989).
The well-established doctrine of “impermissible
collateral attack” has been invoked by many of our sister courts
of appeals to bar suits brought by persons aggrieved by the
certification, construction, or operation of new interstate
energy projects. See, e.g., Bohon v. FERC, 37 F.4th 663, 666
(D.C. Cir. 2022) (concluding that “[t]he Natural Gas Act’s
review scheme precluded district-court jurisdiction over the
Bohons’ collateral attack on the FERC order”); Otwell v. Ala.
Power Co., 747 F.3d 1275, 1279 (11th Cir. 2014) (concluding
that various property owners’ state tort claims regarding the
water levels in a lake were barred as “impermissible collateral
14
attack[s]” on a FERC license to a hydroelectric dam company
that permitted the company to change the water levels in the
lake); Am. Energy Corp. v. Rockies Exp. Pipeline LLC, 622
F.3d 602, 605 (6th Cir. 2010) (concluding that a coal
company’s various claims were barred as impermissible
collateral attacks on a FERC certificate and explaining that
“[e]xclusive means exclusive, and the Natural Gas Act
nowhere permits an aggrieved party otherwise to pursue
collateral review of a FERC certificate in state court or federal
district court”); see also Simmons v. Sabine River Auth. La.,
732 F.3d 469, 477 (5th Cir. 2013) (not applying Tacoma but
otherwise concluding that a property owner’s state negligence
claim for damages caused by floods resulting from the opening
of a hydroelectric dam was an improper “attempt to force
changes to a FERC-issued license”).
The Eleventh Circuit’s opinion in Otwell is particularly
instructive. 747 F.3d 1275. Alabama Power operated a
hydroelectric dam on a lake for decades, under a license from
the FPC. Id. at 1277. As the license approached its expiration,
the utility sought to renew the license on new terms. Id. at
1278. Contrary to its long-existing practice, the utility sought
to lower the water level in the lake and release water at various
times of the year to cool a downstream power plant. Id. The
Smith Lake Improvement and Stakeholders Association
(“SLISA”), comprised of some of the landowners from around
the lake, intervened in the FERC proceedings and opposed the
renewal. Id. It requested that the utility maintain higher water
levels in the lake and minimize the release of water
downstream. Id. FERC rejected SLISA’s requests and granted
the utility a license to operate at the lower water level, which it
then did. Id.
15
Some members of SLISA then filed a putative class
action in state court against the utility, later removed to federal
district court, claiming that its lowering of the water in the lake
caused tortious injury to their property. Id. To remedy their
injuries, the plaintiffs sought “monetary damages, a
declaratory judgment[,] . . . and an injunction requiring [the
utility] to construct cooling towers at [the downstream power
plant].” Id. at 1279. The district court granted summary
judgment to the utility concluding that the plaintiffs’ claims
“were an impermissible collateral attack on the FERC’s . . .
relicensing order.” Id. at 1279. The Eleventh Circuit agreed.
Id. at 1277.
Relying on the principle articulated in Tacoma, the
Eleventh Circuit wrote that “Appellants cannot escape
[Congress’ exclusive review scheme] by arguing that they are
pursuing different claims and different relief than the parties
before the FERC.” Id. at 1281 (citing Tacoma, 357 U.S. at
336). “[T]heir . . . claims are inescapably intertwined with a
review of the FERC’s final decision.” Id. at 1282 (emphasis
added) (citations omitted). “The review entailed by
Appellants’ claims is statutorily dedicated to the court of
appeals.” Id.
The Court further concluded that the landowners were
barred from advancing their state tort claims against the utility
even though they were not themselves intervenors in the
relicensing proceedings. The Court explained,
[w]e do not read [the exclusive
jurisdiction scheme] as allowing
any person or entity that was not a
party to the FERC proceedings to
16
collaterally challenge the final
order resulting from those
proceedings. Instead, we read [it]
as limiting the persons who may
seek judicial review of an order of
the FERC to those parties who
participated in the FERC
proceedings. Thus, non-parties to
the proceedings before the FERC
may not contest the agency’s final
decision in an alternative forum by
bringing challenges that are
inescapably intertwined with a
review of the agency’s final
determination.
Id. at 1282 (emphasis added) (internal citations omitted). This
reading, the court continued, “prevents the [exclusive
jurisdiction] provision from being rendered nugatory.” Id.
Indeed, to read the provision in any other way would allow,
any person or entity with an
interest in the proceedings before
the FERC [to] evade the . . .
exclusive judicial review provision
by simply choosing not to
participate in the proceedings, or
by creating a corporate entity to
champion its interests before the
agency. Then, following an
adverse order, the non-participants
could obtain a collateral
redetermination of the identical
17
issues considered and rejected in
the FERC’s final order because
those persons were not parties to
the proceedings. Such a
construction of the statute would
do violence to Congress’s
deliberately crafted administrative
scheme.
Id. at 1282-83 (emphasis added). In the Eleventh Circuit’s
view, whether a party’s claim is an impermissible collateral
attack upon a FERC order centers on whether the adjudication
of the claim would require the court to review any issues
“inescapably intertwined” with the earlier FERC certification
process. Id. at 1282.
The Eleventh Circuit thus added another way of
determining whether the later proceeding involved issues that
“inhered in” the certification process and constituted an
impermissible collateral attack on a FERC decision. It looked
to whether the later claim raised issues “inescapably
intertwined” with the FERC certification process. This tracks
the approaches of other courts of appeals.
The D.C. Circuit in Bohon, for example, focused on
whether the plaintiff’s claims were “anchored in [the] pipeline
proceedings” and, if successful, would “directly imperil[] a
specific certificate that FERC granted.” 37 F.4th at 666. And
the Sixth Circuit in Am. Energy Corp. focused on whether the
“heart of th[e] claim[]” was bound up in the operation of the
pipeline, which was authorized by FERC’s certificate. 622
F.3d at 605. No matter the specific language employed by our
various sister courts of appeals to describe the analysis, in
18
answering the question of whether a claim is an impermissible
collateral attack, they each focus their attention not on the
plaintiffs’ characterization of their claim but rather on whether
the claim “could and should have” been presented to FERC
because the claims raise “issues inhering in the controversy.”
Tacoma, 357 U.S. at 336, 339.
The Adorers urge that the Supreme Court’s recent
opinion in PennEast Pipeline Co. v. New Jersey, supports their
position that theirs is not a collateral attack. 141 S. Ct. 2244(2021). We disagree.
There, as in Tacoma, the recipient of a certificate of
public convenience and necessity sought to exercise its
eminent domain power against state lands. Id. at 2253. The
State of New Jersey, however, opposed the condemnation
proceedings on sovereign immunity grounds. Id. It lost before
the district court, but we reversed because we did not think that
15 U.S.C. § 717f(h) clearly delegated the federal government’s
power to pierce states’ sovereign immunity along with its
eminent domain power. Id. at 2253–54. The Supreme Court
granted certiorari and, before reaching the merits of the
dispute, held that New Jersey had not launched a collateral
attack on the FERC order granting PennEast’s certificate. Id.
at 2254. The Court explained that this case was unlike
Tacoma, because
New Jersey does not seek to
modify FERC’s order; it asserts a
defense against the condemnation
proceedings initiated by PennEast.
To determine whether the District
Court correctly rejected New
19
Jersey’s defense, the Third Circuit
needed to decide whether
§ 717f(h) grants natural gas
companies the right to bring
condemnation suits against States.
Its conclusion that § 717f(h) does
not authorize such suits did not
“modify” or “set aside” FERC’s
order, which neither purports to
grant PennEast the right to file a
condemnation suit against States
nor addresses whether § 717f(h)
grants that right.
Id. Even though the state asserted a counterclaim that would
have the effect of negating the route that FERC had set up via
the regulatory process, it was not a collateral attack because
asserting the sovereign immunity defense is not the same as
“arguing that a licensee could not exercise the rights granted to
it by the license itself.” Id. (emphasis added). Our
determination as to whether the NGA delegated the federal
power to pierce states’ sovereign immunity did not touch the
FERC order at all. See id.
The Adorers urge that Tacoma is distinguishable and
PennEast is the better analogue here because the “appropriate
relief” that is due to them under RFRA is monetary damages,
42 U.S.C. § 2000bb-1(c), and granting those does not modify
or set aside Transco’s certificate. We disagree. The fact
remains that their allegation that the presence and operation of
the pipeline on their property violated their rights under RFRA
is the essence of both lawsuits. This could and should have
been contested before FERC during the certification
20
proceedings where such issues were to be resolved.5 The
appropriate court of appeals could then have reviewed and
remedied any insufficiency in FERC’s resolution of the
Adorers’ claim. But, again, having failed to avail themselves
of the exclusive review scheme established by Congress under
the NGA for adjudicating such claims, the Adorers’ claim is
now barred as an impermissible collateral attack.
The Tenth Circuit’s analysis in Save the Colorado v.
Spellmon, --- F.4th ----, No. 21-1155, 2022 WL 4588319 (10th
Cir. Sept. 30, 2022) leads us to the same result. There, the court
let the opponents of plans to raise a local dam and expand the
reservoir behind it sue in the district court, but the basis for
their lawsuit was completely distinguishable from the
Adorers’. The at-issue agency approvals did not come from
FERC, but from the Army Corps of Engineers and the United
States Fish and Wildlife Service. Save the Colorado, 2022 WL
4588319, at *2, *7. After analyzing the underlying statutory
5
Indeed, the more “appropriate relief,” as the District Court
noted, was presumably a rerouting of the pipeline around their
property. App. at 11. The thrust of RFRA is the prevention or
elimination of a violation, not simply the compensation for
spiritual harms after the fact by an award of money. See Little
Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,
140 S. Ct. 2367, 2395 (2020) (Alito, J., concurring) (emphasis
added) (citation omitted) (explaining that “[o]nce it [is]
apparent that [the Government’s action] [runs] afoul of RFRA,
the Government [i]s required to eliminate the violation. RFRA
does not specify the precise manner in which a violation must
be remedied; it simply instructs the Government to avoid
‘substantially burden[ing]’ the ‘exercise of religion’—i.e., to
eliminate the violation.”).
21
claims that the plaintiffs had brought and determining whether
each underlying issue inhered in the controversy per Tacoma,
id. at *7–12, the Tenth Circuit concluded that even though “the
municipality needed a discharge permit to raise the dam and
expand the reservoir—matters subject to [FERC’s] licensing
decision,” because the NGA did not govern the licenses
granted by the Corps or Service and FERC could not hear
challenges to those licenses, the plaintiffs’ “claims did not
attack the merits of [FERC’s] approval of an amended license,”
id. at *14. Therefore, this was not a collateral attack. Id. at *5,
14.
The Tenth Circuit noted that this conclusion was
consistent with Adorers I, because the breadth of FERC’s
authority was not an issue in that case. Id. at *9. Here, there
is no question that FERC can adjudicate RFRA claims, see
Snoqualmie Indian Tribe v. FERC, 545 F.3d 1207, 1213 (9th
Cir. 2008) (noting that FERC had evaluated the tribe’s RFRA
claim before relicensing a hydroelectric project), and the
Adorers do not attack any license that Transco has received
from any other agency, so Save the Colorado does not advance
the Adorers’ cause.
B.
In this case, we conclude the Adorers’ RFRA claim is
an impermissible collateral attack on the FERC certificate
because the claim could and should have been raised before
FERC. Their RFRA claim raises issues inhering in the
controversy, namely the route, construction, and operation of
the pipeline through the Adorers’ property. The Adorers allege
that “Transco’s action in placing the Pipeline in to [sic] service
using the Adorers’ land caused a substantial burden to the
22
religious exercise of the Adorers in violation of RFRA.” App.
at 37 ¶ 111 (emphasis added). They also allege that it was
Transco’s “use [of their] private property . . . to install and
operate a natural gas pipeline that . . . “damage[d] . . . the
Adorers.” App. at 39 ¶ 117. These allegations make plain that
their RFRA claim is “anchored in [the] pipeline.” Bohon, 37
F.4th at 666. It is “inescapably intertwined” with the pipeline’s
route, construction, and operation. Otwell, 747 F.3d at 1282.
And the “heart of th[e] claim[]” challenges the operation of the
pipeline, which was authorized after extensive, public
proceedings before FERC as required by the NGA and FERC
regulations. Am. Energy Corp., 622 F.3d at 605.
The consequences of a hypothetical victory for the
Adorers betray the collateral nature of their RFRA damages
suit. Were the Adorers to succeed on their RFRA claim,
moreover, a damages award could conceivably affect, among
other things, the price of gas flowing to Transco’s customers,
the gas flow rate, and the general fiscal and economic impact
of operating the pipeline. Such a result would no doubt
impermissibly, “directly imperil[]” the FERC certificate and
would otherwise undermine the certification procedure
Congress created in enacting the NGA. Bohon, 37 F.4th at
666. Furthermore, it would cause potential contractors to think
twice before embarking on a costly project only to later face
claims for damages caused by the pipeline. Thus, the Adorers’
claim is, like the plaintiffs’ claims in Tacoma, Otwell,
Williams, Bohon, and Am. Energy, an impermissible collateral
attack.
23
C.
We cannot conclude without addressing three specific
contentions pressed by the Adorers in their briefs and at oral
argument. First, they urge that because FERC cannot award
money damages, this suit was properly brought in District
Court.6 But this argument makes little sense. Had they
proceeded with an objection before FERC, and convinced the
Commission of a violation, no doubt the Commission would
have provided relief—by rerouting the pipeline or otherwise
attaching some condition upon the permit as it did in countless
other instances—and if it did not, the Adorers would have had
recourse to an appeal to an appropriate court of appeals. If their
claim was valid, they would have suffered no harm. Moreover,
any claim for damages would not have been cognizable as no
damage had yet occurred. Whether FERC can or cannot award
damages is irrelevant.
Second, the Adorers essentially repeat the argument
they made in Adorers I, that their claim was not ripe at the time
FERC issued the certificate, but rather, the claim began to
accrue only once Transco “plac[ed] the Pipeline in to [sic]
service,” App. at 37 ¶ 111, thereby, placing a burden upon their
religious exercise. In addition to the reason we previously
rejected this claim,7 we note that were we to adopt the Adorers’
suggestion that they were under no obligation to present their
RFRA claim to FERC because the claim was not ripe, the court
would effectively exempt all claims against a new pipeline’s
construction and operation from the NGA’s review scheme.
Such a rule would entirely upend Congress’s intent.
6
Appellants’ Br. at 40-47.
7
See above Section II.
24
Third, the Adorers urge that because Transco knew of
their objection to the pipeline and neither it nor FERC brought
them into the administrative proceeding to resolve it, they
should somehow be permitted to proceed in federal court. But
this turns the administrative process on its head. It is not up to
the pipeline contractor or FERC to seek out potential objectors
at its peril. To the contrary, objectors who sit on their hands
and do not raise their concerns in the administrative process do
so at their peril. To permit a party to reserve a claim, the
success of which would directly imperil a FERC decision to
certify an interstate pipeline, by remaining silent during the
FERC proceedings only to raise the claim in de novo litigation
in a different forum of its own choosing would contravene
Congress’ decision to channel all such claims through the
NGA’s exclusive review framework. Such a result would also
contravene the Supreme Court’s long-standing precedent in
Tacoma.
IV.
For these reasons, we will affirm the District Court’s
order granting Transco’s motion to dismiss.
25