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Columbia Gas Transmission, LLC v. Temporary Easements for Abandonment of A Natural Gas Transmission Pipeline Across Properties In Somerset And Fayette Counties

United States District Court, W.D. Pennsylvania

April 5, 2017

COLUMBIA GAS TRANSMISSION, LLC, Plaintiff,
v.
TEMPORARY EASEMENTS FOR THE ABANDONMENT OF A NATURAL GAS TRANSMISSION PIPELINE ACROSS PROPERTIES IN SOMERSET AND FAYETTE COUNTIES, PENNSYLVANIA, OWNED BY MARK J. AND LINDA G. MCCARTY PARCEL ID 42-38-0023 AND 16-18-005; APPALACHIAN TIMBER PRODUCTS, INC. PARCEL ID 02-014-038-00, and UNKNOWN PERSONS AND INTERESTED PARTIES, Defendants.

          MEMORANDUM OPINION

          KIM R. GIBSON JUDGE

         Pending before the Court are plaintiff Columbia Gas Transmission, LLC's motions for partial summary judgment as to its authority to condemn the temporary easements at issue in this case and for injunctive relief in the form of immediate access to and possession of those temporary easements (ECF No. 18). For the reasons that follow, Columbia Gas's motion for a preliminary injunction is GRANTED, and the Court will defer ruling on Columbia Gas's motion for partial summary judgment.

         I. Background [1]

         Columbia Gas Transmission, LLC is an interstate natural-gas company as defined by the Natural Gas Act ("NGA"), 15 U.S.C. § 717a(6), that transports natural gas and its byproducts throughout the United States. Columbia Gas operates approximately 12, 000 miles of pipeline facilities located in Delaware, Kentucky, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. As an interstate natural-gas company, Columbia Gas is subject to the jurisdiction of the Federal Energy Regulatory Commission ("FERC"). See 42 U.S.C. §§ 7172(a)(1)(C)-(E).

         On May 20, 2015, Columbia Gas filed an application with the FERC for approval to abandon a section of its Line 138 system and certain associated facilities located in Fayette and Somerset Counties, Pennsylvania, as well as in Preston County, West Virginia, and Garrett County, Maryland. Specifically, Columbia Gas sought approval to abandon an approximately 32.8-mile section of Line 138, including two meter stations, one odorizer, one siphon, five ground valves, and eight mainline valves. In its application, Columbia Gas explained that it sought to abandon this segment of Line 138 due to its age and condition; Columbia Gas stated that much of Line 138 consists of pipeline that predates the 1950s and that several sections have become exposed. (See ECF No. 1-3 at 3.) According to Columbia Gas, the pipeline's age and exposure had led to deterioration, which caused issues with reliability and imposed increased maintenance costs. (See id.) Columbia Gas predicted that continued operation of that section of Line 138 would require the operating pressure to be reduced to the point where Columbia Gas would no longer be able to serve its customers. (See id.) Columbia Gas sought to accomplish abandonment of the portion of Line 138 through both removal and abandonment in place. Columbia Gas further requested, pursuant to Section 7(c) of the NGA, a certificate of public convenience and necessity authorizing the construction and operation of a new lateral line to maintain service to a firm-transportation customer.

         Notice of Columbia Gas's application was published in the Federal Register on July 8, 2015. 80 Fed. Reg. 39093-01 (July 8, 2015). Several interested parties timely intervened. (See ECF No. 1-3 at 4, 12.) Two of those parties filed comments expressing concerns about Columbia Gas's application; one party noted his concern with possible cost increases as a result of the abandonment, and another party voiced her concern about possible soil contamination as a result of gas leakage from part of the pipeline and requested that the pipeline be removed in the leaking areas rather than abandoned in place. (Id. at 4.)

         On February 18, 2016, the FERC approved Columbia Gas's application, issued Columbia Gas a certificate of public convenience and necessity, and authorized Columbia Gas to proceed with abandonment. Order Issuing Certificate & Approving Abandonment, 154 FERC ¶ 61, 116 (Feb. 18, 2016) (ECF No. 1-3 at 2-12). In its order approving Columbia Gas's application the FERC addressed the intervenors' comments but concluded that they were not grounds for denial of Columbia Gas's application. The FERC responded to the comment about soil contamination by writing that "to the extent there has been any past leakage of natural gas from the facilities to be abandoned, such leakage would have been localized and of minimal risk to the surrounding environment, as the gas would have dissipated into the atmosphere." (Id. at 10.) The FERC noted further that "[o]nce the facilities have been abandoned from use, there will be no potential for future gas leakage, " and did not address the request for abandonment by removal. (Id.)

         On December 21, 2016, Columbia Gas filed this condemnation action under the NGA against Mark J. McCarty and Linda G. McCarty, Appalachian Timber Products, Inc., and so-called Unknown Persons and Interested Parties (jointly the "Landowners"). In its complaint, Columbia Gas stated that it already owns an easement on the Landowners' properties which gives Columbia Gas the rights to operate and maintain Line 138 over those properties. Columbia Gas stated further that it needs additional temporary easements over the Landowners' properties to accomplish Line 138's removal, and that it filed this case because negotiations with the Landowners had been unsuccessful.

         Columbia Gas seeks to condemn easements for (1) temporary access to existing access roads on the Landowners' properties to support the abandonment in place of the pipeline and removal of the above-ground appurtenances to Line 138 after abandonment, and (2) an easement for temporary workspace on the McCartys' property. Columbia Gas estimates that it needs the temporary easements for approximately two weeks. In its complaint, Columbia Gas requested immediate entry "prior to the determination of compensation upon deposit with the Court of a bond, " a trial to determine the just compensation due to the Landowners, and a determination and award of just compensation to the Landowners for the taking of the temporary easements. (ECF No. 1 at 4-5.)

         On March 14, 2017, Columbia Gas moved for partial summary judgment as to its authority to condemn the temporary easements and requested affirmative injunctive relief in the form of immediate access to and possession of the temporary easements. (ECF No. 18.) Columbia Gas contends that it needs immediate access and possession so that it can meet its contractual and regulatory obligations related to the pipeline's removal. Columbia Gas states that it must begin abandonment of the portion of the pipeline on the Landowners' properties by April 1, 2017, to meet those obligations. In its briefing, Columbia Gas also clarifies the extent of the easements it seeks; it seeks temporary access to 25 feet of existing access roads on the property of Appalachian Timber and to 2300 feet of existing access roads on the McCarty property, as well as temporary workspace of 0.1 acres on the McCarty property. (ECF No. 19 at 1-2.)

         The Court held a hearing on Columbia Gas's motion on March 30, 2017. At the hearing, Columbia Gas presented exhibits and testimony from Tyler Hallinan. Mr. Hallinan is a project manager for Columbia Gas and oversees the abandonment of Line 138. The Landowners entered a photograph into evidence and presented testimony from John Merschat, owner of Appalachian Timber, and Mark McCarty.

         II. Jurisdiction & Venue

         This Court has jurisdiction under 15 U.S.C. § 717f(h) and 28 U.S.C. § 1331. Because the temporary easements Columbia Gas seeks are located in the Western District of Pennsylvania, venue is proper in this district under 28 U.S.C. § 1391(b)(2).

         III. Legal Standard

         "A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munafv. Geren, 553 U.S. 674, 689-90 (2008)). A preliminary injunction is appropriate only "upon a clear showing that the [movant] is entitled to such relief." Id. at 22 (citation omitted). In determining whether a party is entitled to a preliminary injunction, courts consider four factors: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed without the preliminary injunction; (3) whether granting the preliminary injunction will result in even greater harm to the nonmovants; and (4) whether granting the preliminary injunction will be in the public interest. Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less in Venn Twp., 768 F.3d 300, 315 (3d Cir. 2014) (citation omitted).

         IV. ...


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