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Nuns' Religious Freedom Claim Barred in Pipeline Opposition

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Early this year, the U.S. Supreme Court decided not to hear a case by a group of Pennsylvania based Roman Catholic nuns who filed a petition for their religious freedom case to be reviewed. The nuns argued their rights would be violated if a natural gas pipeline crossed their land. The nuns were appealing the U.S. Third Circuit Court of Appeals decision sustaining the U.S District Court of the Eastern District of Pennsylvania's ruling that the nuns lacked standing to sue because of subject matter jurisdiction and because they hadn't raised their objection to the Federal Energy Regulatory Commission (FERC) when it permitted the pipeline.

 

Religious Group’s Objections

The Adorers of the Blood of Christ (Adorers) own a parcel of land in Columbia, Pennsylvania that is impacted by FERC's decision to issue a certificate of public convenience, allowing Transcontinental Gas Pipe Line Company, LLC (Transco) to build a two-hundred-mile-long gas pipeline crossing their property. The Adorers object to their land being condemned by eminent domain for the pipeline stating their religious beliefs require “they care for the land in a manner that protects and preserves the Earth as God’s creation.” The Appeals Court noted part of the Adorer’s practice is to “protect, preserve and treasure the land that they own.” They follow a letter “Laudato Si” written by Pope Francis where he called for the halt of environmental degradation and to encourage a ‘culture of care.’

Missed Opportunities

On May 12, 2016, a copy of the Environmental Impact Statement (EIS) FERC drafted was mailed to affected parties and environmental groups. It held four public comment meetings from June 13 to June 16, 2016. FERC received over 560 written comments from affected parties regarding the EIS draft. The Adorers however never participated in any of these activities. On February 3, 2017, FERC “Order Issuing Certificate” allowing the pipeline to be built and allowing Transco to take private property needed for the pipeline by eminent domain. The Adorers failed to cooperate with either Transco nor the District Court who ordered the condemnation. Instead, after the District Court granted Transco the right to condemn, on July 14, 2017, the Adorers filed a complaint against FERC alleging that it violated their rights under RFRA, and sought injunctive relief preventing the pipeline from crossing their land. The Adorers asserted RFRA and NGA conflict with each other. It stated RFRA grants them a right to assert a claim in federal district court, but the NGA cannot be used to prevent them from asserting their claim because Congress provisioned RFRA to supersede all Federal law.

FERC Objections

Many of the landowners presented their objections to FERC requesting a rehearing after the land condemnation and pipeline permitting was approved.  However, significant to their case, the Adorers Order of the Blood neither took their RFRA objections to FERC, nor did they request a rehearing.  To date, FERC has not addressed the rehearing merit requests.

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.

Adorers of the Blood of Christ v. Fed. Energy Regulatory Comm'n, 283 F. Supp. 3d 342, 344 (E.D. Pa. 2017), aff'd, 897 F.3d 187 (3d Cir. 2018), cert. denied sub nom. Adorers of the Blood of Christ, U.S. Province v. F.E.R.C., 139 S. Ct. 1169, 203 L. Ed. 2d 256 (2019)
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.

Adorers of the Blood of Christ v. Fed. Energy Regulatory Comm'n, 283 F. Supp. 3d 342, 344 (E.D. Pa. 2017), aff'd, 897 F.3d 187 (3d Cir. 2018), cert. denied sub nom. Adorers of the Blood of Christ, U.S. Province v. F.E.R.C., 139 S. Ct. 1169, 203 L. Ed. 2d 256 (2019)
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.

Adorers of the Blood of Christ v. Fed. Energy Regulatory Comm'n, 283 F. Supp. 3d 342, 344 (E.D. Pa. 2017), aff'd, 897 F.3d 187 (3d Cir. 2018), cert. denied sub nom. Adorers of the Blood of Christ, U.S. Province v. F.E.R.C., 139 S. Ct. 1169, 203 L. Ed. 2d 256 (2019)Early Judicial Proceedings

Instead, the Adorers filed a complaint in the U.S. District Court for the Eastern District of Pennsylvia using as legal grounds the protections guaranteed under the Religious Freedom Restoration Act (RFRA). The District Court dismissed the complaint for lack of subject matter jurisdiction considering the Natural Gas Act’s (NGA) provisions addressing exclusive judicial review of FERC orders in the DC circuit or the circuit where the  gas company is located or has its principal place of business.  The District Court noted that plaintiffs had failed to take their complaints to FERC or had complied with NGA's provisions giving exclusive jurisdiction to the appropriate Court of Appeals.

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.

Adorers of the Blood of Christ v. Fed. Energy Regulatory Comm'n, 283 F. Supp. 3d 342, 345 (E.D. Pa. 2017), aff'd, 897 F.3d 187 (3d Cir. 2018), cert. denied sub nom. Adorers of the Blood of Christ, U.S. Province v. F.E.R.C., 139 S. Ct. 1169, 203 L. Ed. 2d 256 (2019)

Appeals' Court Proceedings

The Appeals Court noted that before FERC can grant “certificates of public convenience and necessity,” it must provide reasonable notice to interested parties and set the matter for a hearing. Aggrieved persons are required to apply for a rehearing before FERC within thirty days of the issuance of the certificate. If a rehearing before the FERC is not sought, the aggrieved persons are then statutorily barred from later seeking judicial review.The Court of Appeals held the two statutes do not conflict. It stated that the NGA provides procedural requirements claimants must abide by to exercise their RFRA right to a “judicial proceeding.” According to RFRA, the government cannot burden a person’s exercise of religion unless the burden “results from a rule of general applicability.” The exception to this rule is if the government demonstrates that exercising this burden “is the least restrictive means” to further a “compelling government interest.” The Court of Appeals also disagreed with the Adorers conclusion that the judicial relief provision provides them the right to assert their claim in district court. The Court held NGA’s procedural requirements provide that the jurisdiction be “exclusive” with “the court of appeals of the United States. It further stated that the Adorers failure to assert themselves in the FERC process that allowed for the public responses causing them to have “foreclosed judicial review of their substantive RFRA claims."

Unique Method to Argue Against Pipeline

This is a unique and novel case. Many legal cases have presented themselves lately where religious freedom is presented as the reason for prohibiting some form of action by a different party. Businesses that have refused to bake cakes, arrange floral art, as well as private adoption agencies refusing to allow same-sex couples adopt children have used the same argument of exercising their religious freedom. If you would like to have more information on how to contest a decision by a government agency that affects yourself or the environment, call Whitcomb Selinsky PC at (866) 476-4558 or complete an online contact form.

About the AuthorRaymundo Ribota

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