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Transcontinental Gas Pipe Line Co., LLC v. Permanent Easement For 3.24 Acres And Temporary Easements For 4.70 Acres In Hemlock And Mount Pleasant Townships

United States District Court, M.D. Pennsylvania

August 15, 2017



          Matthew W. Brann United States District Judge.

         I. BACKGROUND

         On March 28, 2017, Plaintiff, Transcontinental Gas Pipe Line Company, LLC, hereinafter “Transco, ” filed a complaint in condemnation pursuant to Federal Rule of Civil Procedure 71.1 and the Natural Gas Act, 15 U.S.C. § 717. Previously, on February 3, 2017, the Federal Energy Regulatory Commission, hereinafter “FERC, ” granted Transco a certificate of public convenience and necessity. Transco filed suit after proving unable to negotiate the amount of compensation to be paid for the right-of-way with the Defendants in order to construct, operate and maintain a pipeline for the Atlantic Sunrise Project; construct new and make modifications to existing, compressor stations; construct new and make modifications to existing, meter stations; make modifications to existing regulator stations; and make modifications to existing mainline valve locations in South Carolina, North Carolina, Virginia, Maryland, and, as largely relevant here, 199.5 miles through Pennsylvania.[1]

         On June 30, 2017, I entered an Order granting Transco's unopposed motion for partial summary judgment and held that Transco has the substantive right to condemn the subject property.[2]

         On June 29, 2017, Transco filed a motion for preliminary injunction.[3] A hearing was held on the motion on August 3, 2017. The Defendant landowners did not appear at the hearing. After taking testimony and hearing argument from Transco, the motion is granted.


         a. A preliminary injunction will be entered in Transco's favor.

         Defendants have not made any attempts to oppose the motion for preliminary injunction. By way of example, Defendants' brief opposing the motion for preliminary injunction was due July 14, 2017; Defendants failed to file an opposing brief. Middle District Local Rule 7.6 states that any party who fails to file a timely opposing brief “shall be deemed not to oppose such motion.” As noted above, I held a hearing on the motion for preliminary injunction; Defendants failed to appear at the hearing. When Defendants “do not appear at the scheduled hearing, the Court may enter a preliminary injunction against them by default.”[4]Accordingly, the preliminary injunction will be granted procedurally, for failing to appear and defend the action; it will also be granted substantively, for the reasons that follow.

         Because of the unique procedures associated with federal condemnation actions arising under the Natural Gas Act, Plaintiff must first establish that it has a substantive right to condemn the property at issue. Once a substantive right has been found, a court “may exercise equitable power to grant the remedy of immediate possession through the issuance of a preliminary injunction” pursuant to Federal Rule of Civil Procedure 65 which governs the granting of preliminary injunctions.[5] “The [Natural Gas Act] does not allow for ‘quick take' powers; in a condemnation action under the Act, we must evaluate access to property under the preliminary injunction rubric of Federal Rule of Civil Procedure 65(c).”[6] Rule 65 provides in pertinent part:

(a) Preliminary Injunction.         (1) Notice. The court may issue a preliminary injunction only on notice to the adverse party.

         (2) Consolidating the Hearing with the Trial on the Merits. Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party's right to a jury trial . . .

(c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

         “It is well established that ‘a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial or on the merits.'”[7] “A preliminary injunction[, however, ] is an extraordinary remedy never awarded as of right.”[8]

         Generally, a party seeking a preliminary injunction must establish four factors: (1) a reasonable probability of success on the merits of their argument; (2) irreparable harm to the movant in the absence of relief; (3) granting the preliminary injunction will not result in greater harm to the nonmoving party; and (4) the public interest favors granting the injunction.[9] The United States Court of Appeals for the Third Circuit has recently clarified the standard. “A movant for preliminary equitable relief must meet the threshold for the first two “most critical” factors: it must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief.”[10] “If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief.”[11] In the case at bar, the four factors favor entering the preliminary injunction as requested by Transco.

         First, Transco has succeeded on the merits. Unlike preliminary injunctions in other types of civil actions, those sought in condemnation cases also request an entry of judgment on the merits contemporaneously with the motion for preliminary injunction. Therefore, given the grant of partial summary judgment on June 30, 2017, finding Transco's substantive right to condemn, the likelihood of success on the merits is established. Accordingly, this factor favors Transco.

         Second, Transco will suffer irreparable harm in the absence of preliminary relief. Transco set forth several examples of irreparable harm both in its papers and at the hearing. The first is monetary. Transco contends non-possession will cost it $500, 000 per month, and will delay revenues of thirty-three million dollars ($33, 000, 000) per month because Transco needs possession in order to begin construction. David Sztroin, the project manager for this project, testified consistently to that end at the August 3, 2017 hearing. Transco will suffer substantial costs and loss of profits if it cannot begin the project as soon as possible.

         The next type of irreparable harm set forth by Transco is that it will breach contracts with both subcontractors and vendors if it cannot possess the subject properties in a timely fashion. The contract with shippers was designed so that the pipeline is in service by the 2017-2018 winter heating season. I note that this argument also cuts against Plaintiff, as Transco has acknowledged that delays in obtaining the FERC certificate have already caused it to miss that deadline; the current anticipated completion date for the project is now July 2018. On the other hand, Transco argues that its “in use” date will continue to be pushed back even further if possession is not ordered by August 18, 2017. Sztroin explained that each delay would have a “domino effect” that delays the entire project.

         Transco also argues that it will experience other substantial delays in completion of the project if it is not granted access. It asserts that non-possession could set construction back an entire year because it must conduct surveys on endangered and threatened wildlife species that are only permitted during certain dates each year. Additionally, certain work must be completed in Pennsylvania prior to the annual October deadline for work on wild trout streams. Specifically, Transco must install in-stream supports for equipment bridges prior to October 1, 2017.

         In sum, the Atlantic Sunrise Project is large in both scope and geography, spanning five states. “The magnitude of the Project requires a complex and coordinated construction process, with work activities being performed in sequential phases”[12] Each piece of the construction puzzle depends on the prior piece timely placed. Untimeliness in one small part of this enormous project would result in a ...

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