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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ADELPHIA GATEWAY, LLC, :
Plaintiff : CIVIL ACTION
:
v. :
:
CERTAIN EASEMENTS AND RIGHTS :
OF WAY NECESSARY TO OPERATE :
AND MAINTAIN AN 18” NATURAL GAS :
TRANSMISSION PIPELINE IN BETHEL :
TOWNSHIP, DELAWARE COUNTY, :
PENNSYLVANIA, TAX PARCEL :
NUMBER 03-00-00167-00, 2060 FOULK :
ROAD, GARNET VALLEY, PA 19060 et al., : No. 20-999
Defendants :
M E M O R A N D U M
PRATTER, J. APRIL 27, 2020
The Federal Energy Regulatory Commission (“FERC”) issued an order granting Adelphia
Gateway, LLC (“Adelphia”) a certificate of public convenience and necessity for a project to
purchase, construct, and operate proposed pipeline facilities to provide natural gas. To complete
the project, Adelphia must possess certain rights-of-way owned by the defendants. The defendants
have not accepted any of Adelphia’s offers to purchase the rights-of-way. Adelphia moves for
partial summary judgment on the issue of its substantive right to condemn the rights-of-way and
for a preliminary injunction giving Adelphia possession of the rights-of-way.1
For the reasons that follow, the Court grants the motion for summary judgment and the
motion for a preliminary injunction.
1 The Court notes that Adelphia filed similar motions for partial summary judgment and the same
omnibus motion for a preliminary injunction in about 30 cases. Given this volume, the Court has issued
analogous memoranda in each case, taking care to incorporate individual details where necessary.
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BACKGROUND
Adelphia filed an application with FERC in January 2018 seeking a certificate of public
convenience and necessity for a project to purchase, construct, and operate proposed pipeline
facilities in Delaware and Pennsylvania. Adelphia’s project will provide natural gas to the Greater
Philadelphia industrial region and two power plants, as well as potential additional markets.
The FERC evaluated the public need for the project and completed a review of its
environmental impacts and operational considerations. The FERC issued a Notice of Intent to
Prepare an Environmental Assessment for the proposed project in May 2018, publishing the Notice
in the Federal Register and mailing it to 4,709 interested parties. The Notice established a scoping
period and requested comments from the public on specific concerns or issues for consideration.
The FERC also conducted two public scoping sessions in the project’s area.
On December 20, 2019, the FERC issued a FERC order granting Adelphia a certificate of
public convenience and necessity for the project. The order authorized Adelphia to construct and
operate two 16-inch diameter laterals, two compressor stations, five meter and regulator stations,
seven blowdown assembly valves, two mainline valves, two tap valves, and four pig launcher and
receiver facilities. The order also authorized Adelphia to repurpose an existing pipeline system.
To construct, operate, and maintain the approved project and pipeline facilities, Adelphia
requires certain rights-of-way that are within the scope of the FERC order. Adelphia has attempted
to purchase each of the rights-of-way for at least $3,000 a piece. The defendants have rejected or
otherwise not accepted Adelphia’s offers. Adelphia now seeks an order of condemnation that it
has the substantive right to condemn the rights-of-way as well as a preliminary injunction granting
Adelphia possession as requested.
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PROCEDURAL HISTORY
Adelphia filed its complaint on February 21, 2020 and served a notice of the condemnation
via personal service in accordance with Federal Rules of Civil Procedure 4 and 71.1(d) on March
5, 2020. Under Rule 71.1(e)(2), the defendants had until 21 days after Adelphia served its notice
to file an answer. No answer was ever filed. Accordingly, under Rule 71.1(e)(3), the defendants
have waived all objections and defenses to Adelphia’s condemnation of the rights-of-way at issue.
See FED. R. CIV. P. 71.1 advisory committee’s note (“Failure on the part of the defendant to serve
an answer constitutes a consent to the taking and to the authority of the court to proceed to fix
compensation therefor, but it does not preclude the defendant from presenting evidence as to the
amount of compensation due him or in sharing the award of distribution.”).
Adelphia has filed a motion for partial summary judgment on the issue of its substantive
right to condemn the rights-of-way. Adelphia promptly served a copy of the motion on the
defendants via First Class U.S. Mail. Local Rule 7.1(c) states that “[u]nless the Court directs
otherwise, any party opposing the motion shall serve a brief in opposition together with such
answer or other response that may be appropriate, within fourteen (14) days after service of the
motion and supporting brief.” No opposition to the motion was timely filed.
Adelphia has also filed a motion for a preliminary injunction seeking possession of the
rights-of-way and served a copy of the motion on the defendants via First Class U.S. Mail. Again,
no opposition to the motion was filed. Nor has any counsel entered an appearance on behalf of
the defendants.
MOTION FOR SUMMARY JUDGMENT
Adelphia moves for summary judgment on the issue of its authority to condemn the rights-
of-way. Because it is undisputed that Adelphia meets the three requirements under the Natural
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Gas Act (“NGA”) to acquire property by eminent domain, the Court grants the motion for partial
summary judgment.
I. Legal Standard
A court can properly grant a motion for summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). An issue is “genuine” if there is a sufficient evidentiary basis on
which a reasonable jury could return a verdict for the non-moving party. Kaucher v. Cnty. of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). A factual dispute is “material” if it might affect the outcome of the case under
governing law. Id. (citing Anderson, 477 U.S. at 248). Under Rule 56, the Court must view the
evidence presented on the motion in the light most favorable to the non-moving party. See
Anderson, 477 U.S. at 255. However, “[u]nsupported assertions, conclusory allegations, or mere
suspicions are insufficient to overcome a motion for summary judgment.” Betts v. New Castle
Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).
The movant bears the initial responsibility for informing the Court of the basis for the
motion for summary judgment and identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Where the non-moving party bears the burden of proof on a particular issue, the moving party's
initial burden can be met simply by “pointing out to the district court that there is an absence of
evidence to support the nonmoving party's case.” Id. at 325. After the moving party has met the
initial burden, the non-moving party must set forth specific facts showing that there is a genuinely
disputed factual issue for trial by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
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. . . , admissions, interrogatory answers, or other materials” or by “showing that the materials cited
do not establish the absence or presence of a genuine dispute.” FED. R. CIV. P. 56(c). Summary
judgment is appropriate if the non-moving party fails to rebut by making a factual showing
“sufficient to establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
II. Discussion
The NGA provides:
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 right-of-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.
15 U.S.C. § 717f(h).
A gas company may acquire property by eminent domain under § 717f(h) of the Natural
Gas Act if it meets three requirements: “[F]irst, that it holds a certificate of public convenience
and necessity from the Federal Energy Regulatory Commission (FERC); second, that it was unable
to acquire the right of way through negotiation with the landowner; and third, that the amount
claimed by the owner of the property exceeds $3,000.” Transcon. Gas Pipe Line Co., LLC v.
Permanent Easements for 2.14 Acres & Temp. Easements for 3.59 Acres in Conestoga Twp.,
Lancaster Cty., Pa., Tax Parcel No. 1201606900000, 907 F.3d 725, 729 (3d Cir. 2018), cert.
denied sub nom. Like v. Transcon. Gas Pipe Line Co., LLC, 139 S. Ct. 2639 (2019). “If these
conditions are met, the gas company may ‘acquire the [necessary right-of-way] by the exercise of
the right of eminent domain in the district court.’” Id. (quoting 15 U.S.C. § 717f(h)).
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The FERC issued an order granting Adelphia a certificate of public convenience and
necessity for the project on December 20, 2019. “By issuing the Certificate [of public necessity]
to [Plaintiff], FERC has determined that the Subject Property is necessary to the operation of the
Pipeline[; t]his determination cannot be challenged by Defendants.” Transcon. Gas Pipe Line Co.,
LLC v. Certain Easements & Rights of Way Necessary to Construct, Operate & Maintain a 30’
Nat. Gas Transmission Pipeline, in Northmoreland Twp., Wyoming Cty., Pa., 359 F. Supp. 3d 257,
262 (M.D. Pa. 2019) (alterations in original) (quoting WBI Energy Transmission, Inc., No. 14-130,
2017 WL 532281, at *3 (D. Mont. Feb. 8, 2017)). Because Adelphia holds a certificate of public
convenience and necessity from the FERC, Adelphia satisfies the first condition.
Adelphia has also attempted to negotiate with the landowners to obtain the rights-of-way,
but the landowners have not accepted Adelphia’s offers to pay at least $3,000 for each of the rights-
of-way. Therefore, Adelphia satisfies the second and third conditions because negotiations have
failed and the amount claimed by the landowners exceeds $3,000. See Transcon. Gas Pipe Line
Co., LLC, 907 F.3d at 731 (“[The plaintiff] extended written offers of compensation exceeding
$3000 to each of the Landowners, but these offers were not accepted. [The plaintiff] thus satisfied
the second and third requirements.”).
Adelphia has met all three requirements of § 717f(h). Therefore, the Court concludes that
Adelphia has the substantive right to condemn the rights-of-way at issue, and partial summary
judgment is entered in Adelphia’s favor.
PRELIMINARY INJUNCTION
Adelphia also moves for a preliminary injunction granting Adelphia possession of the
rights-of-way at issue. Because Adelphia has demonstrated (1) a reasonable probability of success
on the merits, (2) that Adelphia will suffer irreparable injury if the preliminary injunction is denied,
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(3) that the landowners will not suffer greater harm, and (4) that granting the preliminary injunction
is in the public interest, the Court grants the motion for a preliminary injunction.2
I. Legal Standard
In ruling on a request for a preliminary injunction, a district court is required to examine
four factors before granting preliminary injunctive relief: “(1) whether the movant has shown a
reasonable probability of success on the merits; (2) whether the movant will be irreparably injured
by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to
the nonmoving party; and (4) whether granting preliminary relief will be in the public interest.”
Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less in Penn Twp., York Cty., Pa.,
Located on Tax ID # 440002800150000000 Owned by Brown, 768 F.3d 300, 315 (3d Cir. 2014)
(quoting Am. Express Travel Related Servs. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir.
2012)). The movant must “meet the threshold for the first two ‘most critical’ factors,” and 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.” Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017), as amended
(June 26, 2017).
2 The Court notes that it can issue a preliminary injunction only upon notice to the adverse party.
See FED. R. CIV. P. 65(a)(1). Here, no defendant has entered an appearance, answered the complaint, or
filed a response to the motion for summary judgment or to the motion for a preliminary injunction.
However, Adelphia provided notice of the condemnation to the defendants via personal service in
accordance with Rule 4 as required under Rule 71.1 and served the defendants with copies of all motions
via first-class mail. The defendants have received notice of the motion for a preliminary injunction and
their 21 days to file a response have passed. Therefore, as other courts have done under similar
circumstances, the Court may rule on the motion. See, e.g., Transcon. Gas Pipe Line Co., LLC v. A
Permanent Easement Totaling 0.799 Acres, More or Less, and Temp. Easements Totaling 0.763 Acres,
More or Less, Over a Parcel of Land in Brunswick Cty., Va. of Approximately 27.00 Acres In et al., No.
14-407, Doc. No. 39 (E.D. Va. Aug. 7, 2017); Transcon. Gas Pipe Line Co., LLC v. Permanent Easement
for 0.03 Acres & Temp. Easement for 0.02 Acres in S. Londonderry Twp., Lebanon Cty., Pa., No. 17-00565,
2017 WL 3485752 (M.D. Pa. Aug. 15, 2017).
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“[T]he NGA’s grant of standard condemnation powers to natural gas companies does not
preclude federal courts from granting equitable relief in the form of a preliminary injunction when
gas companies have obtained the substantive right to condemn and otherwise qualify for equitable
relief.” Transcon. Gas Pipe Line Co., LLC, 907 F.3d at 741. Indeed, “once a district court
determines that a gas company has the substantive right to condemn property under the NGA, the
court may exercise equitable power to grant the remedy of immediate possession through the
issuance of a preliminary injunction.” PennEast Pipeline Co., LLC v. A Permanent Easement of
0.60 Acre ± & a Temp. Easement of 0.60 Acre ± in Towamensing Twp., Carbon Cty., Pa., No. 18-
281, 2018 WL 6304191, at *1 (M.D. Pa. Dec. 3, 2018) (quoting E. Tenn. Natural Gas Co. v. Sage,
361 F.3d 808, 828 (4th Cir. 2004)); see also Transcon. Gas Pipe Line Co., LLC, 907 F.3d at 739
(“And this Court too, albeit with less discussion, has ruled that where summary judgment is
properly granted on a condemnation complaint, a preliminary injunction is appropriate as well.”).
“[A]ll three Pennsylvania district courts within the Third Circuit have held that the grant of a
preliminary injunction is appropriate when a FERC certificate holder has established the
substantive right to condemn a property, subject to a future determination of just compensation.”
Transcon. Gas Pipe Line Co., LLC v. Permanent Easement for 2.14 Acres, No. 17-1725, 2017 WL
3624250, at *7 (E.D. Pa. Aug. 23, 2017) (citations omitted), aff’d sub nom. Transcon. Gas Pipe
Line Co., LLC v. Permanent Easements for 2.14 Acres & Temp. Easements for 3.59 Acres in
Conestoga Twp., Lancaster Cty., Pa., Tax Parcel No. 1201606900000, 907 F.3d 725 (3d Cir.
2018).
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II. Discussion
A. Likelihood of Success on the Merits
Because the Court has just determined that Adelphia is entitled to the rights-of-way at issue
and granted its motion for partial summary judgment, Adelphia has already succeeded on the
merits. See Columbia Gas Transmission, LLC, 768 F.3d at 315 (“This is not a ‘normal’ preliminary
injunction, where the merits await another day. In those situations, the probability of success is
not a certainty such that weighing the other factors is paramount. Here, there is no remaining
merits issue; we have ruled that Columbia has the right to the easements by eminent domain.”).
Therefore, the first factor weighs strongly in favor of granting the preliminary injunction.
B. Irreparable Harm to the Moving Party
Pursuant to the FERC order, Adelphia must satisfy certain environmental conditions prior
to construction. Adelphia argues that many of those conditions require surveys of the property
that can only be conducted if Adelphia has possession of the rights-of-way. Adelphia also asserts
that the FERC cannot permit Adelphia to begin construction until Adelphia has obtained various
federal authorizations. To obtain these authorizations, Adelphia must perform field survey work,
including wetland and waterbody identification and delineations as well as characterizing and
assessing soil and geologic resources on the property. Adelphia claims that it must have possession
of the rights-of-way by mid-April3 to perform these surveys and still meet the project’s deadlines.
Furthermore, under Adelphia’s construction schedule, the work to repurpose an existing
pipeline in Bucks, Montgomery, Chester, and Delaware Counties begins by May 1, 2020. This
schedule was set in preparation for a planned in-service date of December 1, 2020. Adelphia
3 The Court has not been informed whether or to what extent orders and advisories concerning
COVID-19 cause any adjustment to the various dates set forth in Adelphia’s papers. Regardless, the Court
accepts that time is of the essence.
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claims that if it is unable to perform this work, it will be hindered in its ability to repurpose the
pipeline to meet the scheduled in-service date.
Such a failure to adhere to the project schedule and meet the in-service date would result
in a substantial loss in revenue to Adelphia estimated at approximately $14,150 per day. Adelphia
also argues that if its ability to meet the in-service date is delayed or if Adelphia’s shippers believe
that Adelphia is not making a reasonable effort to provide service by the promised date, Adelphia
may suffer adverse effects on its reputation and a loss of customer confidence.
Courts in the Third Circuit have held that delays in satisfying pre-construction conditions,
delays in construction itself, and threats to reputation constitute immediate and irreparable harm.
See Columbia Gas Transmission, LLC, 768 F.3d at 315 (granting preliminary injunctions and
finding that the plaintiff would suffer irreparable injury if construction were delayed in the form
of harm to the plaintiff’s “safety, reputation, and economic interests”); PennEast Pipeline Co.,
LLC, 2018 WL 6304191, at *2 (finding the timeliness of conducting a property survey an important
piece in the “construction puzzle” that could “have an enormous effect on the entire [] Project”)
(citations omitted); Transcon. Gas Pipe Line Co., LLC, 2017 WL 3624250, at *8 (finding
construction delays and monetary loss sufficient to establish irreparable harm); Transcon. Gas
Pipe Line Co., LLC v. Permanent Easement for 2.59 Acres, No. 17-00289, 2017 WL 1105237, at
*5 (M.D. Pa. Mar. 24, 2017) (“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 domino
effect on the timeliness of all other areas of the project. This factor weighs strongly in favor of
[the plaintiff].”), aff’d sub nom. Transcon. Gas Pipe Line Co., LLC v. Permanent Easement for
2.59 Acres, Temp. Easements for 5.45 Acres & Temp. Access Easement for 2.12 Acres in Pine
Grove Twp., Schuylkill Cty., PA, 709 F. App’x 109 (3d Cir. 2017). The second factor weighs in
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favor of granting the preliminary injunction because Adelphia has demonstrated that it will suffer
irreparable harm if it is not granted possession of the rights-of-way.
C. Harm to the Nonmoving Party
Adelphia argues that any harm to the nonmoving party in granting the preliminary
injunction can be remedied with monetary damages during a compensation hearing. The Court
agrees. As the Third Circuit Court of Appeals has explained:
[T]he harm to the Landowners that will result if we grant [the plaintiff’s]
preliminary injunctions is minimal. Since we have already determined that [the
plaintiff] has the right of eminent domain, it is a certainty that the requested
easements will be granted. The Fifth Amendment also guarantees that the
Landowners will be justly compensated. The Landowners have not stated any
concrete injury other than the loss of the easements over their land, which will
definitely occur, whether or not we grant [the plaintiff] immediate possession of the
easements.
Columbia Gas Transmission, LLC, 768 F.3d at 316. Furthermore, here the landowners “have not
answered the complaint; they failed to file any opposing briefs; no counsel entered an appearance
in this matter. The landowners appeared to have ignored the matter in its entirety. Accordingly,
[the Court] can discern no harm to [the] landowner[s].” Transcon. Gas Pipe Line Co., LLC v.
Permanent Easement for 0.03 Acres & Temp. Easement for 0.02 Acres in S. Londonderry Twp.,
Lebanon Cty., Pa., No. 17-00565, 2017 WL 3485752, at *3 (M.D. Pa. Aug. 15, 2017). The third
factor weighs in favor of granting the preliminary injunction.
D. The Public Interest
Adelphia claims that granting it possession of the rights-of-way is in the public interest
because the project will provide Adelphia’s customers and their respective markets with a new and
much-needed source of natural gas.
“Congress passed the Natural Gas Act and gave gas companies condemnation power to
ensure that consumers would have access to an adequate supply of natural gas at reasonable
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prices.” Transcon. Gas Pipe Line Co., LLC, 359 F. Supp. 3d at 267 (quoting E. Tennessee Nat.
Gas Co., 361 F.3d at 830). Furthermore, the FERC determined that the project was in the public
interest when it issued an order granting Adelphia a certificate of public convenience and necessity.
Therefore, a preliminary injunction granting Adelphia possession of the rights-of-way so it can
meet project’s deadlines is also in the public interest. This fourth factor weighs in favor of granting
the preliminary injunction.
All four factors weigh in favor of granting a preliminary injunction that grants Adelphia
possession of the rights-of-way at issue. Therefore, the Court grants Adelphia’s motion for a
preliminary injunction.
E. Adelphia’s Request for an Enforcement Mechanism
Finally, Adelphia asks the Court to include an enforcement mechanism to ensure
compliance with the order granting Adelphia access to and possession of the rights-of-way. In
support of its request, Adelphia claims that it will suffer irreparable harm if the landowners or third
parties disrupt, halt, or impede construction activities by being present on the properties. Adelphia
argues that this Court has the power to enter an order designed to coerce compliance with its terms
and that courts in the Third Circuit have included enforcement mechanisms such as the one
requested when granting preliminary injunctions in pipeline-related condemnation actions.
This Court has “the authority and ‘inherent power to enforce compliance with its lawful
orders through civil contempt.’” Transcon. Gas Pipe Line Co., LLC, 2017 WL 1105237, at *9
(quoting Shillitani v. United States, 384 U.S. 364, 370 (1966)). Given the Court’s inherent power
and the unopposed nature of Adelphia’s request, the Court will include an enforcement mechanism
in its accompanying order.
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CONCLUSION
For the foregoing reasons, the Court grants Adelphia's motion for partial summary
judgment and for a preliminary injunction. An appropriate order follows.
BY THE COURT:
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