2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-26-2014

Columbia Gas Transmission LLC v. 1.01 Acres

Penn Twp

Precedential or Non-Precedential: Precedential

Docket No. 13-4458

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 13-4458

COLUMBIA GAS TRANSMISSION, LLC,

 Appellant

v.

1.01 ACRES, MORE OR LESS IN PENN TOWNSHIP, 

YORK COUNTY, PENNSYLVANIA, LOCATED ON 

TAX ID# 440002800150000000 OWNED BY 

DWAYNE P. BROWN AND ANN M. BROWN; 

DWAYNE P. BROWN; ANN M. BROWN 

No. 13-4459

COLUMBIA GAS TRANSMISSION, LLC,

 Appellant

v.
2

101 ACRES, AND 41,342 SQ. FT MORE OR LESS IN 

HEIDELBERG TOWNSHIP, 

YORK COUNTY, PENNSYLVANIA, LOCATED ON TAX 

ID #30000EE1600000000, OWNED BY BRADLEY E. 

HERR AND ELIZABETH M. HERR; BRADLEY E. HERR; 

ELIZABETH M. HERR 

No. 13-4460

COLUMBIA GAS TRANSMISSION, LLC,

 Appellant

v.

1.5561 ACRES, MORE OR LESS IN 

HEIDELBERG TOWNSHIP,

YORK COUNTY PENNSYLVANIA, LOCATED ON TAX 

ID #30000ED010300000000, OWNED BY MYRON A. 

HERR AND MARY JO HERR; 

MYRON A. HERR; MARY JO HERR 
3

No. 13-4461

COLUMBIA GAS TRANSMISSION, LLC, 

Appellant

v.

1.010 ACRES, MORE OR LESS IN PENN TOWNSHIP, 

YORK COUNTY PENNSYLVANIA, LOCATED ON TAX 

ID #440002800240000000, OWNED BY DOUGLAS W. 

HILYARD AND TESSA J. HILYARD; DOUGLAS W. 

HILYARD; TESSA J. HILYARD

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(Nos.: 4-13-cv-00778; 4-13-cv-00783;

4-13-cv-00785 and 4-13-cv-00786)

District Judge: Honorable Matthew W. Brann

Argued on July 9, 2014

Before: RENDELL, CHAGARES and JORDAN, 

Circuit Judges

(Filed: September 26, 2014)
4

Anastasia P. Cordova, Esquire 

Stephen P. Mulligan, Esquire

John D. Wilburn, Esquire (Argued)

McGuire Woods

1750 Tysons Boulevard

Suite 1800

Tysons Corner, VA 22102

Erin N. Fischer, Esquire

McGuire Woods

625 Liberty Avenue

23rd Floor, Dominion Tower

Pittsburgh, PA 15222

Counsel for Appellant

Joshua M. Autry, Esquire (Argued)

Michael F. Faherty, Esquire

Lavery Faherty Patterson

225 Market Street

Suite 304, P. O. Box 1245

Harrisburg, PA 17108

Counsel for Appellees

O P I N I O N

RENDELL, Circuit Judge:
5

The issue before us is straightforward: does Columbia 

Gas Transmission, LLC (“Columbia”), have the right of 

eminent domain to obtain easements over the land of 

objecting landowners, outside of the existing right of way, in 

order to replace deteriorating pipeline? The answer is equally 

straightforward and clear: yes. 

The regulatory authority given to natural gas 

companies such as Columbia actually anticipates replacement 

outside the existing right of way as we discuss below, and 

contains no adjacency requirement. The issue before us, then, 

whether Columbia has a right to replace the pipeline outside 

of the existing right of way, is actually a non-issue. But, the 

District Court put a peculiar “spin” on the regulations in 

question, finding them to be ambiguous by adopting its own 

definition of “replace” and concluding that a “notice” of 

“proposed rulemaking” for “Emergency Reconstruction of 

Interstate Natural Gas Facilities” promulgated by the Federal 

Energy Regulatory Commission (“FERC”) after 9/11 should 

somehow be viewed as resolving this ambiguity in the law. 

Our dissenting colleague adopts this argument. However, we 

suggest that the statute and regulations are clear and the case 

before us is easily resolved.

Columbia, an interstate natural gas company subject to 

the jurisdiction of FERC, seeks to replace a portion of a 

natural gas pipeline (“Line 1655”) that runs in and around 

York County, Pennsylvania. Because the original location of 

the pipeline has become heavily populated, the replacement 

will not track the original line but instead will be outside the 
6

existing right of way. (App. 27.)1In an effort to obtain 

easements necessary to complete construction of the 

replacement, in March 2013, Columbia filed Complaints in 

Condemnation against four landowning couples (the 

“Landowners”) in federal court. In May 2013, Columbia filed 

motions for partial summary judgment and for preliminary 

injunctions to acquire immediate possession of the easements. 

In June 2013, the Landowners also filed motions for summary 

judgment. The District Court subsequently denied Columbia’s 

motions and granted the Landowners’ motions, holding that 

Columbia did not have the right of eminent domain required 

to condemn the easements. The District Court’s conclusion 

rested on the determination that the relevant FERC regulation, 

18 C.F.R. § 157.202(b)(2)(i), was ambiguous. As a result, the 

Court looked outside the regulations to a sentence in a notice 

of proposed rulemaking that it concluded set forth the agency 

interpretation. This was a mistake. The language of the 

governing regulations could not be more clear. For the 

reasons set forth below, we will reverse the judgments of the 

District Court.2

 

1 The District Court stated that the replacement pipeline 

would be one quarter of a mile from the original but the 

Landowners counter that the replacement pipeline will be “up 

to a mile away.” (App. 15.) The actual distance between the 

replacement pipeline and the existing pipeline is not clear 

from the record, but because using the greater distance does 

not change our position with respect to the appeal, we will 

assume that it is correct.

2 Columbia also appeals the judgment of the District Court 

with respect to a motion for reconsideration (or a “motion to 

alter”) it filed on December 13, 2013. Because we will 

reverse the District Court on the motions for summary 
7

I. Background

Line 1655 is over fifty years old, and Columbia asserts 

that portions of the pipeline must be replaced to meet safety 

standards established by the Pipeline and Hazardous 

Materials Safety Administration. Columbia has already 

replaced 19,000 feet — or 95% — of the pipeline but has 

been stalled in replacing the last 1,000 feet because it lacks 

the remaining necessary easements — that is, the easements 

on and across the Landowners’ properties. Columbia 

attempted to obtain these easements through negotiation, as it 

had the others it needed, but was unsuccessful.3 Accordingly, 

Columbia filed a complaint in the District Court, seeking 

condemnation of the remaining easements to which it was 

entitled pursuant to the Natural Gas Act, 15 U.S.C. § 717f(h). 

Before addressing the District Court’s disposition of the case, 

we will set forth the statutory scheme that underpins 

Columbia’s entitlement to the easements. 

A. Statutory Scheme

The Natural Gas Act provides:

When any holder of a certificate of public 

convenience and necessity cannot acquire by 

 

judgment, the appeal of the order concerning the motion for 

reconsideration will be moot. 

3 The Dissent makes the claim that Columbia “threatened” the 

Landowners. (Dissent. Op. at 3.) This is a sensationalist 

reading of Columbia’s statement that its offers were higher 

than the fair market value of the land, and has no basis in the 

record.
8

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 . . . 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) (emphasis added). Accordingly, a 

certificate of public convenience and necessity gives its 

holder the ability to obtain automatically the necessary right 

of way through eminent domain, with the only open issue 

being the compensation the landowner defendant will receive

in return for the easement. In 1983, FERC issued a blanket 

Certificate of Public Convenience and Necessity (the “FERC 

Certificate”) to Columbia that covers Line 1655. Columbia’s 

FERC Certificate states that Columbia is “authorized to 

conduct many routine activities and abandon facilities and 

service on a self-implementing basis without further 

authorization by the Commission.” (App. 104.) (emphasis 

added) In defining “routine activities,” the Certificate 

references 18 C.F.R. § 157.203(b). This regulation provides 

that blanket certificate holders have automatic authorization

to engage in transactions described in certain other 

provisions, including 18 C.F.R. § 157.208(a), which states, in 

relevant part:

If the project cost does not exceed the cost 

limitations set forth in column 1 of Table I, 

under paragraph (d) of this section, or if the 

project is required to restore service in an 
9

emergency, the certificate holder is authorized 

to make miscellaneous rearrangements of any 

facility, or acquire, construct, replace, or 

operate any eligible facility. 

18 C.F.R. § 157.208(a) (emphasis added). Costs limitations 

are not an issue in this case.4 Thus, if Columbia is replacing 

an “eligible facility,” this constitutes a “routine activity” and 

Columbia can conduct this activity on a “self-implementing 

basis without further authorization by the Commission.” 

(App. 104.)5 

 

4 As relevant here, gas companies holding a certificate, 

relying on Section 157, must provide notice to FERC and an 

environmental impact statement for any replacement 

construction project, unless the costs are less than $11 

million. 18 C.F.R. § 157.208(a)-(b), (d). Columbia had 

originally budgeted the replacement for Line 1655 at $10.6 

million, but encountered additional costs in the form of 

condemnation proceedings. (App. 1412-13.) Accordingly, 

Columbia requested a waiver of the $11 million cost cap from 

FERC. The agency concluded that: “[I]t appears that 

Columbia made a good faith effort to construct the 

replacement project under the guidelines and cost limits set 

forth in section 157.208(d) of the Commission’s blanket 

certificate regulations. Based on the specific facts and 

circumstances of this project, waiver of cost limitations in this 

instance is granted.” (App. 1413.)

5 The Dissent urges that some notice or process should 

accompany this type of activity by certificate holders, in order 

to avoid constitutional problems. That argument is best made 

to Congress – or in the next case. It has not been raised in the 

case before us. 
10

It is important to note that if Columbia Gas did not 

have a blanket certificate, and instead merely possessed a 

certificate of public convenience and necessity authorizing 

construction of a mainline, for instance, it would be able 

nonetheless to construct or extend facilities “which constitute 

the replacement of existing facilities that have or will soon 

become physically deteriorated or obsolete, to the extent that 

replacement is deemed advisable, if . . . [t]he replacement 

facilities . . . will be located in the same right-of-way or on 

the same site as the facilities being replaced . . . .” 18 C.F.R. § 

2.55(b)(1); 15 U.S.C. § 717(f)(c)(1)(A). This provision is an 

exemption that relieves natural gas companies from the 

requirement of having to obtain a certificate of public 

convenience and necessity.

However, with the instant blanket certificate of public 

convenience and necessity, authorizing routine activities on a 

self-implementing basis, Columbia is not limited to replacing 

within the same right of way, pursuant to Section 2.55(b). 

Instead, as noted above, it can engage in any routine activity 

without further authorization including generally “replac[ing] 

. . . any eligible facility.” 18 C.F.R. § 157.208(a). The issue 

becomes: is Columbia replacing an “eligible facility”? If so, 

it needs no further authorization.

Section 157.202(b)(2)(i) defines an “eligible facility” 

as including “main line, lateral, and compressor replacements

that do not qualify under § 2.55(b) of this chapter because 

they will result in an incidental increase in the capacity of 

main line facilities, or because they will not satisfy the 

location or work space requirements of § 2.55(b).” Thus, by 

definition, this provision includes the replacement of facilities 

that cannot “be located in the same right-of-way or on the 
11

same site as the facilities being replaced.” 18 C.F.R. § 

2.55(b)(ii). Accordingly, by their terms, Sections 157.203(b) 

and 157.208(a) specifically and automatically authorize the 

main line replacement at issue here as a routine activity in 

connection with an eligible facility that cannot be located in 

the same right of way or same site, which Columbia Gas has 

the right to “self-implement[]” without further authorization 

from FERC. (App. 104.)

Though not disputed here, even the right of blanket 

certificate holders to replace eligible facilities is not without 

limits. The Dissent points out four such checks: a reporting 

requirement, a notice requirement, an environmental-impactstatement requirement, and monetary restrictions. (Dissent 

Op. at 27.) 

Other curbs significantly restrict the nature of 

replacement projects. Certificate holders may not construct 

new “delivery points” under the guise of replacement. 18 

C.F.R. § 157.202(b)(2)(ii)(E). Also, in general, 

“Replacements for the primary purpose of creating additional 

main line capacity are not eligible facilities” under blanket 

certificate authority. Id. § 157.202(b)(2)(i). That is, 

“Replacements must be done for sound engineering 

purposes.” Id. In clarifying this stricture, FERC 

“underscore[d]” that “there must be a physical need to replace 

facilities,” such that gas companies may not circumvent the 

general requirements for new pipeline construction simply by 

designating it “replacement.” Revision Of Existing 

Regulations Under the Natural Gas Act, 64 Fed. Reg. 54522, 

54527 (Sept. 29, 1999) (codified at 18 C.F.R 157). FERC 

also encourages the enforcement of such regulations through 

the filing of complaints against companies that falsely claim 
12

the need to replace pipelines. Id. Again, none of these 

limitations are at issue here; Appellees do not challenge, for 

instance, that Line 1655 is being replaced for sound 

engineering reasons. But the regulations ensure that gas 

companies do not possess unfettered discretion in 

constructing and siting replacement pipelines.

B. The District Court’s Opinions

In October 2013, the District Court granted the 

Landowners’ motions for summary judgment, holding that 

Columbia did not have the right of eminent domain. The 

Court reached this conclusion by turning to one dictionary 

definition of the word “replace,” and using it to read an 

adjacency requirement into Part 157. In relevant part, the 

Court stated:

Columbia Gas’s contention . . . is that its 

certificate automatically authorizes relocation of 

replacement Line 1655 literally anywhere on 

earth, so long as the replacement “will not 

satisfy the location or work space requirements 

of § 2.55(b).” But this interpretation of the 

regulations puts an excessively expansive gloss 

on the common meaning of “replace,” see 

Webster’s Third New International Dictionary, 

Unabridged, s.v. “replace,” accessed October 

23, 2013, http://unabridged.merriamwebster.com (“1: to place again: restore to a 

former place, position, or condition”), a term 

that generally does not imply significant 

relocation. Moreover, Columbia Gas’s 

interpretation is seemingly contrary to the 
13

structure of the regulations, which equate the 

“relocation of existing facilities” with another 

defined term, “miscellaneous rearrangement,” 

see 18 C.F.R. § 157.202(b)(6), not with 

“replacement[],” see 18 C.F.R. § 

157.202(b)(2)(i). The meaning of “replacements 

that do not qualify under § 2.55(b),” is, at best, 

ambiguous as it relates to Columbia Gas’s 

replacement Line 1655.

(App. 32-33.) Having created this ambiguity, the District 

Court turned to a notice of proposed rulemaking issued by 

FERC in 2003 in connection with emergency construction of 

natural gas pipelines after 9/11. The Court viewed the notice 

of proposed rulemaking as “a fairly definitive interpretation” 

of the replacement provision contained in Part 157. (App. 33.)

The notice was issued in order to “give pipeline 

companies greater flexibility to reconstruct pipelines during 

emergencies caused by ‘deliberate effort[s] to disrupt the flow 

of natural gas.’” (App. 33 (citations omitted).) It states, in 

pertinent part:

[P]art 157, Subpart F, permits replacement 

construction that uses temporary workspace 

beyond the bounds of the temporary workspace 

previously used to construct the original 

facilities as necessary to install replacement 

facilities. These regulations also permit locating 

a portion of mainline, lateral, or compressor 

replacement facilities outside, but presumably 

adjacent to, an existing right-of-way where, for 

whatever reason, the new facilities could not be 
14

placed entirely within the original facilities’ 

existing right-of-way. These regulations, 

however, do not appear to contemplate mainline 

construction over an entirely different route as 

may be necessary to circumvent the site of a 

disaster if immediate replacement is necessary 

before the original site is again available.

Emergency Reconstruction of 

Interstate Natural Gas Facilities 

Under the Natural Gas Act, 68 

Fed. Reg. 4120, 4122 (proposed 

Jan. 17, 2003) (to be codified at 

18 C.F.R. 157) (emphasis added).6

 

6 The District Court also commented on other portions of the 

2003 notice regarding Part 157:

The agency repeated this general 

idea a number of times: “part 157 

. . . does not permit the extensive 

deviation from an existing rightof-way that would presumably be 

necessary to circumvent a 

restricted or quarantined area,” 

“[part 157] was broadened 

incrementally in 1999 to [allow] 

mainline replacements . . . that . . . 

did not lie within the original 

facilities’ footprint, and 

consequently were outside of the 

section 2.55(b) replacement 

parameters . . . [but] this 
15

The District Court read the Notice 

as imposing an “adjacency” 

requirement onto any replacement 

of a pipeline made under Part 157. 

The Court then also determined 

that since the replacement 

pipeline would be “approximately 

a quarter-mile distant” from the 

existing pipeline and thus, did not 

 

modification in the breadth of 

eligible facilities did not 

contemplate the more extensive 

rerouting that would be required 

to reach around a cordoned 

accident area,” “[the 1999 

broadening of part 157] 

recognized the need to grant 

natural gas companies the 

flexibility to act under blanket 

certificate authority to replace 

facilities where construction of 

new facilities might spill over the 

original temporary workspace or 

permanent right-of-way . . . [but 

did not] envision[] replacement of 

facilities outside the existing 

right-of-way by the creation of an 

entirely new route due to the need 

to circumvent an accident site.

(App. 34-35 (citations omitted).)
16

align with its definition of 

“replace” that required the same 

location, it could not “be properly 

characterized as [a] 

‘replace[ment]’ of an ‘eligible 

facility.’” (App. 36.) 

On November 22, 2013, however, FERC issued a Final 

Rule implementing changes to certain portions of Part 157 of 

Title 18 of the CFR, which governs the instant case.7 The 

Final Rule included a footnote in which FERC identified a 

fact pattern essentially identical to the one at issue here —

that is, whether a company can rely on its blanket certificate 

to replace the capacity of a segment of an obsolete pipeline 

with a new pipeline that may need to be located a 

considerable distance from the old pipeline. (See App. 1042.) 

In it, FERC specifically states that Part 157 allows for such 

replacement even where the replacement is not adjacent to an 

existing right of way: 

“[w]hile the Commission has 

indicated previously that it is 

contemplated that replacement 

facilities constructed under 

blanket authority would usually be 

located adjacent to, if not within, 

an existing right-of-way, sections 

157.202(b)(2)(1) and 157.210 

permit the construction of non-

 

7 This Final Rule has nothing to do with the Notice of 

Proposed Rulemaking previously discussed that was referred 

to by the District Court. 
17

main line facilities and main line 

facilities, respectively, without 

restriction on their location.”8

 

8

In full, the footnote reads: 

We note that in instances where a pipeline 

company needs to rely on its Part 157 certificate 

to construct auxiliary or replacement facilities 

because they do not satisfy the location or work 

space limitations of section 2.55, the Part 157 

blanket certificate regulations impose no 

limitations on the placement of the facilities. 

While the Commission has indicated previously 

that it is contemplated that replacement 

facilities constructed under blanket authority 

would usually be located adjacent to, if not 

within, an existing right-of-way, sections 

157.202(b)(2)(1) and 157.210 permit the 

construction of non-main line facilities and 

main line facilities, respectively, without 

restriction on their location. For example, a 

company can rely on its Part 157 blanket 

certificate to replace the capacity of a segment 

of obsolete pipeline with new pipeline that may 

need to be located at considerable distance from 

the old pipeline in order to avoid a housing 

development constructed since the old pipeline 

was installed or to install auxiliary facilities 

such as anodes offset from the existing right-ofway to provide cathodic protection.
18

Revisions to Auxiliary Installations, Replacement Facilities, 

and Siting and Maintenance Regulations, 78 Fed. Reg. 

72794, 72805 n.78 (Dec. 4, 2013) (to be codified at 18 C.F.R. 

§§ 157 & 380) (emphasis added). Effectively, FERC 

repudiated the District Court’s interpretation of the regulation 

at issue.

On December 13, 2013, Columbia filed Rule 59(e) 

Motions to Alter the Judgment of the District Court based on 

FERC’s recently issued Final Rule. On May 20, 2014, the 

District Court denied Columbia’s Motions to Alter, holding 

that the footnote in FERC’s Final Rule was not entitled to 

deference under Auer v. Robbins, 519 U.S. 452 (1997) 

(holding that deference is owed to an agency’s interpretation 

of its own ambiguous regulation). The District Court 

described FERC’s Final Rule as an “about-face” (App. 54) 

and explained that under Christopher v. SmithKline Beecham 

Corporation, it was not entitled to deference because it 

 

Revisions to Auxiliary Installations, Replacement Facilities, 

and Siting and Maintenance Regulations, 78 Fed. Reg. 

72794, 72805 n.78 (Dec. 4, 2013) (to be codified at 18 C.F.R. 

§§ 157 & 380). The Dissent notes the promulgation of this 

Final Rule closely following the District Court’s decision as if 

this is problematic. To the contrary, we view the Final Rule 

as FERC’s specific, reasonable rebuttal to what it viewed as a 

total misreading of the regulations governing its operation. 

See Christopher v. SmithKline Beecham Corp., 132 S. Ct. 

2156, 2166-67 (2012) (noting that “Auer ordinarily calls for 

deference to an agency’s interpretation of its own ambiguous 

regulation, even when that interpretation is advanced in a 

legal brief . . . .”).
19

conflicted with FERC’s prior interpretation of Part 157, as set 

forth in the Notice of Proposed Rulemaking, and therefore did 

“not reflect the fair and considered judgment of the agency.” 

(App. 56); see also Christopher, 132 S. Ct. 2156, 2166 (2012) 

(Auer deference does not apply where “there is reason to 

suspect that the agency’s interpretation does not reflect the 

agency’s fair and considered judgment on the matter in 

question,” such as where “the agency’s interpretation 

conflicts with a prior interpretation”) (internal quotation 

marks omitted). Consequently, the District Court denied the 

motion and reaffirmed its prior opinion denying Columbia’s 

right of eminent domain.

Columbia challenges the District Court’s orders 

relating to the motions for summary judgment, the motions to 

alter, and the motions for preliminary injunctions. We address 

each matter in turn below. 

II. Discussion9

A. The Motions for Summary Judgment

“Our review of the grant or denial of summary 

judgment is plenary, and we apply the same standard as the 

district court.” Mylan Inc. v. SmithKline Beecham Corp., 723 

 

9 The District Court had jurisdiction under 28 U.S.C. § 1331 

and the Natural Gas Act, 15 U.S.C. § 717f(h). We have 

jurisdiction pursuant to 28 U.S.C. § 1291.
20

F.3d 413, 418 (3d Cir. 2013) (internal quotation marks 

omitted). Summary judgment is appropriate where “drawing 

all reasonable inferences in favor of the nonmoving party, 

there is no genuine issue as to any material fact and . . . the 

moving party is entitled to judgment as a matter of law.” 

Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 322 n.2 (3d 

Cir. 2005) (internal quotation marks omitted). In reviewing 

cross-motions for summary judgment, we view the facts 

contained in each motion in the light most favorable to the 

nonmoving party. Heffner v. Murphy, 745 F.3d 56, 65 (3d 

Cir. 2014). 

We will reverse the District Court’s orders granting the 

Landowners’ motions for summary judgment and denying 

Columbia’s motions for partial summary judgment because 

the Court erred in reading an adjacency requirement into the 

provision regarding replacement pipelines in Part 157 of 

FERC’s regulations. The regulations are unambiguous. 

Section 157.202(b)(2)(i) defines an “eligible facility” as 

including “main line, lateral, and compressor replacements 

that do not qualify under § 2.55(b) of this chapter because 

they will result in an incidental increase in the capacity of 

main line facilities, or because they will not satisfy the 

location or work space requirements of § 2.55(b).” Section 

2.55(b) covers replacement facilities that “will be located in 

the same right of way or on the same site as the facilities 

being replaced, and will be constructed using the temporary 

work space used to construct the original facility.” Therefore, 

a mainline replacement, as in the case of Line 1655, is an 

eligible facility under Part 157 and covered under Columbia’s 

certificate, by definition, because it involves construction 

outside of the existing right of way. 
21

The District Court erred in adopting its own definition 

of “replace” as meaning putting something back in the same 

place. The meaning of “replace,” as commonly understood, is 

not so limited. One replaces electrical wiring in a house, for 

example, by removing worn out or obsolete wires and putting 

in new ones, even if the new wires are routed differently from 

the original wires. The District Court, and the Dissent, omit 

the most relevant definitions of the word “replace”: 

2: to take the place of : serve as a substitute or 

successor of : succeed, supplant <the saw and sawmill 

rapidly replaced the ax . . .>

. . .

4: to fill the place of : supply an equivalent for < a 

broken toy should not be immediately replaced . . .>

Webster’s Third New International Dictionary 1925 (3d ed. 

1993). Put simply, in common parlance, “replace” can mean 

to substitute for, or it can mean to literally re-place, to put 

back in the same position. Because the regulations here 

concern replacing old pipeline, i.e., substituting new for old, 

the former definition is the only appropriate one. That 

definition of replace, to provide an equivalent or substitute, 

contains no inherent adjacency requirement. Accordingly, the 

District Court’s and the Dissent’s, reading injects ambiguity 

into the regulation where none exists. The District Court 

should have ended its analysis by concluding that the 

regulations unambiguously permitted Columbia to complete 

the replacement of Line 1655 outside the existing right of 

way with its existing FERC certificate.

The District Court and our dissenting colleague would 

have a replacement not be a replacement, but rather a 
22

“relocation” if constructed in a different place than the 

original pipeline. But how can this square with Section 

157.202(b)(2)(i), which allows for “replacements” outside the 

existing right of way, so long as the gas company holds a 

blanket certificate of public convenience and necessity?

More importantly, however, the definition of “replace” 

put forward by the District Court, and now described as the 

“better reading” by our dissenting colleague, (Dissent Op. at 

9), is simply incompatible with the statutory scheme and 

therefore not a reasonable interpretation of the word’s 

meaning in this context. The Dissent agrees with the District 

Court in concluding that the word “replace” should be read in 

the regulation to mean, to “restore to a former place, position, 

or condition.” (Dissent Op. at 8). Finding this definition to be 

favorable, the Dissent argues that “[t]he fact that there are at 

least two ways of understanding the word ‘replacement’ 

shows that it is ambiguous . . . .” (Dissent Op. at 11.) In fact 

there is no ambiguity because the definition proposed by the 

Dissent is inapplicable here for two reasons. 

First, as noted above, using the definition of “replace” 

supplied by the Dissent would render portions of the statute 

nonsensical. Even the Dissent notes that, “sound principles of 

interpretation ‘dictate that a regulatory scheme should be read 

as a whole, so that effect is given to all its provisions.’” 

(Dissent Op. at 7.). (quoting Cumberland Coal Res., LP v. 

Fed. Mine Safety & Health Review Comm’n, 515 F.3d 247, 

254 (3d Cir. 2008). In determining whether a statute is 

ambiguous, we:

account for both the “specific context in which . . . 

language is used” and “the broader context of the 
23

statute as a whole.” A statutory “provision that may 

seem ambiguous in isolation is often clarified by the 

remainder of the statutory scheme . . . because only 

one of the permissible meanings produces a 

substantive effect that is compatible with the rest of the 

law.”

Utility Air Regulatory Group v. E.P.A., 134 S. Ct. 2427, 2442 

(2014). If “replace” were limited to restoring to a former 

place or position, why would Section 2.55(b) specify that it 

applies only to replacements “located in the same right-ofway or on the same site as the facilities being replaced”? 

Similarly, Section 157.202(b)(2)(i) defines an “eligible 

facility,” inter alia, as a replacement that “will not satisfy the 

location or work space requirements of § 2.55(b),” that is, a 

replacement that is situated outside the position of the 

previous pipeline. This conclusively proves that the plain 

meaning of replace in this context is not to restore to a former 

place or position. 

If we were to apply the Dissent’s suggested definition 

of the word “replace” to the regulation, the result would be 

absurd–a replacement could never occur under Part 157 in the 

situation contemplated. Where a replacement facility cannot

be “located in the same right-of-way or on the same site as 

the facilities being replaced,” 18 C.F.R. § 2.55(b), it clearly 

cannot take the former place or position of the replaced 

facility. Finally, the Dissent’s definition would contravene 

Section 157.202(b)(ii)(B), which states that an “Eligible 

facility does not include . . . [a]n extension of a main line, 

except replacement facilities covered under § 

157.202(b)(2)(i).” Thus, far from requiring replacements to 

take the place of the old pipeline, the regulations explicitly 
24

recognize that replacement pipelines may properly result in 

extensions of a main line.10

Second, a clear understanding of the definition adopted 

by the District Court and the Dissent shows its inapplicability 

to the statutory context here. To “restore” an object to a 

“former place,” (Dissent Op. at 8) necessarily implies that the 

object previously occupied a certain position, and that same 

object is being returned to that position. Another way to 

understand this definition is by considering “replace” to mean 

literally “re-place,” whereby an object is removed, possibly 

modified, and returned to its original location. For instance: 

“after dusting the vase, she replaced it on the shelf” 11; 

“[r]eplace your boots on your bare feet, and paddle across 

waterway with well-protected feet”12; “replaced the card in 

the file.”13 

 

10 Perhaps recognizing these points, the Dissent argues that it 

is not claiming that the pipeline must be replaced in “exactly 

the same spot.” (Dissent Op. at 9.) This contradicts its chosen 

definition, however. One cannot both claim that replace 

means to restore to the same place or position, and that it 

means to install in a different place or position. And once one 

acknowledges that a replacement, i.e. substitute, might well 

occupy a different location from the thing it has replaced, as 

we well agree, there is no inherent limit in the word “replace” 

as to where a replacement may be situated.

11 Replace, Cambridge Dictionaries Online, 

http://dictionary.cambridge.org/us/dictionary/ americanenglish/replace (last visited September 12, 2014).

12 Replace, Oxford English Dictionary, 

http://www.oed.com/view/Entry/162819?rskey= 
25

In other words, an object is placed back in its former 

location.14 One cannot place back something which never 

was placed in that position to begin with. Thus, the Dissent’s 

definition necessarily allows Columbia only to place the same 

pipeline back again in its former location. Accordingly if 

Columbia installed a new pipeline as part of a replacement 

project, even in the original right of way, it would 

automatically be in violation of the certificate, because it 

would not be “replacing” a pipeline back to its original site, 

i.e., it would not be “restoring” any pipe to its “former” 

position. Thus, the definition favored by the District Court 

and Dissent is so stringent as to be absurd and cannot govern 

here.15 

The District Court also erred in relying on FERC’s 

post-9/11 notice of proposed rulemaking, as requiring that 

 

BbM3iQ&result=2&isAdvanced=false (last visited 

September 12, 2014)).

13 Webster’s Third New International Dictionary 1925 (3rd 

ed. 1993).

14 While the Dissent accuses us of “cherry-pick[ing]” these 

examples, we cite them simply as representative uses of the 

word “replace” when used in the sense of restoring to a 

former place. (Dissent Op. at 9 n.6.) If there is another way 

of employing the word in this context, we have not 

encountered it and the Dissent does not supply it. 

15 Instead, “replace” in the broad sense of “to furnish an 

equivalent or substitute” controls “especially” in the case 

when referring to something that “has been lost, depleted, 

worn out, or discharged . . . .” American Heritage Dictionary 

of the English Language 1479 (4th ed. 2009).
26

replacements must be adjacent to replaced pipelines. This 

notice concerned the previously unaddressed situation of the 

restoration of gas service in the aftermath of a disaster. A 

close examination of the language of the notice makes 

manifest the error of relying on it as imposing or confirming 

an “adjacency” requirement in the law. For example, it states 

that replacement facilities contemplated under Part 157 would 

be “outside, but presumably adjacent to, an existing right of 

way.” Emergency Reconstruction of Interstate Natural Gas 

Facilities Under the Natural Gas Act, 68 Fed. Reg. at 4122 

(emphasis added). There is nothing controversial or new in 

this statement. A replacement pipeline would “presumably” 

be adjacent to an existing pipeline for a number of practical 

reasons – cost, environmental permitting limitations, capacity 

requirements, and convenience. This does not mean, however, 

that a replacement pipeline is required to be adjacent to an 

existing right of way. The other sentence noted by the 

Dissent is similarly inconclusive: “[t]hese regulations, 

however, do not appear to contemplate mainline construction 

over an entirely different route as may be necessary to 

circumvent the site of a disaster . . . .” Id. (emphasis added). 

Again this is dicta, but even more it states the obvious: 

regulations that speak to replacing “physically deteriorated or 

obsolete” pipeline indeed might not be viewed as 

“contemplating” completely changing the location of a totally 

obliterated pipeline to circumvent a disaster.16 Nowhere does 

 

16 The notice dealt specifically with emergencies such as a 

“sudden unanticipated loss of natural gas or capacity,” not 

deteriorating pipelines. 68 Fed. Reg. at 4120. Presumably 

FERC wanted to make clear that whether existing lines were 

rendered inoperable or were totally destroyed due to a 

disaster, re-routing was permissible. One cannot fault FERC 
27

the Notice of Proposed Rulemaking state that replacement 

pipelines, in a non-emergency context, must be located 

adjacent to the original right of way.17

 

for wanting to cover all bases in such a situation, lest 

someone contend that “replacement” in the existing 

regulations applied only to the routine replacement of 

pipelines that “have or will soon become physically 

deteriorated or obsolete . . . .” 18 C.F.R. § 2.55(b)(1).

17 Indeed, FERC did not impose an adjacency requirement in 

adopting that portion of Section 157.202(b)(2)(i) which 

allows replacement construction outside the original right of 

way. In the relevant Final Rule, several comments had 

“argue[d] that replacements not in the same ROW [right of 

way] should be covered under the blanket certificate instead 

of requiring a separate §7(c) application.” Revision of 

Existing Regulations Governing the Filing of Applications for 

the Construction and Operation of Facilities To Provide 

Service or To Abandon Facilities or Service Under Section 7 

of the Natural Gas Act, 64 Fed. Reg. 26572, 26580 (May 14, 

1999) (codified at 18 CFR 157). Accordingly, one such 

comment proposed the clause that was subsequently codified, 

allowing construction outside the previous right of way. 

FERC thus agreed with the comments, stating broadly that: 

“We intend to allow replacement facilities that do not qualify 

under §2.55(b) because of land requirements to be eligible 

facilities that can be constructed under §157.208 of the 

blanket certificate. Further, to the extent that pipelines require 

more ROW than is provided for in appendix A to part 2 for 

replacement projects, including those not in the original 

footprint, such as river crossings, etc., those replacements 

would qualify as eligible facilities under our proposal.” Id.

The only caveats noted by FERC were that such replacements 
28

The Notice of Proposed Rulemaking, in any event, is 

entirely consistent with the plain text of the regulations, 

authorizing replacements by certificate-holders outside the 

right of way without any explicit adjacency requirement. 

Indeed, the Final Rule established that FERC views its 

regulation the same way. Accordingly, we need not even 

consider principles of deference where the regulation is 

unambiguous. See Christensen v. Harris Cnty., 529 U.S. 576, 

588 (2000) (“Auer deference is warranted only when the 

language of the regulation is ambiguous.”) The regulation 

speaks for itself, such that Columbia is entitled to the 

easements necessary to complete the replacement of Line 

1655. The District Court erred in concluding otherwise.

For its part, the Dissent contends that (1) the 

regulations are ambiguous because of the different possible 

meanings of “replace”, (2) the Notice of Proposed 

Rulemaking is “plainly in opposition” to the Final Rule, and 

(3) therefore the Final Rule is not entitled to Auer deference. 

(Dissent Op. at 20); Christopher v. SmithKline Beecham 

Corp., 132 S. Ct. 2156, 2166 (2012) (noting that Auer 

deference may not be appropriate where an “agency’s 

interpretation conflicts with a prior interpretation . . . .”) 

Even putting aside the fact that the meaning of “replace” is 

unambiguous, as noted above, the caveats, vague language, 

and highly specific nature of the situation dealt with in the 

Notice of Proposed Rulemaking establish that there is no 

conflict with the Final Rule. Further, the Final Rule itself 

recognizes, and perfectly harmonizes with, the language of 

the previous Notice: “[w]hile the Commission has indicated 

 

were subject to environmental restrictions and landowner 

notice provisions.
29

previously that it is contemplated that replacement facilities 

constructed under blanket authority would usually be located 

adjacent to, if not within, an existing right of way, sections 

157.202(b)(2)(1) and 157.210 permit the construction of nonmain line facilities and main line facilities, respectively, 

without restriction on their location.” 78 Fed. Reg. at 72805 

n.78 (emphasis added). 

Even if we were to assume that the regulations are 

ambiguous, the interpretation of the Final Rule would still 

control. That is because the Final Rule is fully consistent 

with the Notice, and, as an agency interpretation of its own 

regulation, it is deserving of deference. Decker v. Nw. Envtl. 

Def. Ctr., 133 S. Ct. 1326, 1337 (2013) (“It is well established 

that an agency’s interpretation need not be the only possible 

reading of a regulation—or even the best one—to prevail. 

When an agency interprets its own regulation, the Court, as a 

general rule, defers to it unless that interpretation is plainly 

erroneous or inconsistent with the regulation.”) (internal 

quotations omitted). Thus, even if we accepted the Dissent’s 

purported ambiguity in the regulations, FERC’s interpretation 

in the Final Rule should control, and Columbia would remain 

entitled to the sought easements.

The Dissent also claims that the Final Rule is simply a 

“post hoc rationalization” on the part of FERC, and therefore 

not deserving of Auer deference. (Dissent Op. at 17.) We 

acknowledge that Auer deference may not be appropriate 

where an interpretation constitutes a “‘post hoc 

rationalizatio[n]’ advanced by an agency seeking to defend 

past agency action against attack.” Christopher, 132 S. Ct. at 

2166 (emphasis added). But in this case, there is no past 

agency action that FERC is seeking to defend. Columbia 
30

simply replaced its pipeline under its blanket certificate 

outside the original right of way, and FERC later made clear 

in the Final Rule that Columbia had the authority under the 

applicable regulations to do so. FERC is not a party to this 

action, nor does it have any reason to favor Columbia’s 

interpretation over the Landowners’, but, we submit, only 

desires to make clear what the regulations provide. The Final 

Rule accordingly should not be read as any type of post-hoc

rationalization.

In the end, the Dissent’s reading appears to be aimed 

primarily at avoiding what it perceives to be constitutional 

problems, namely “a grant of limitless authority.” (Dissent 

Op. at 32.) As set forth above, blanket certificate-holders do

not possess unfettered discretion to replace pipeline. They 

are constrained by cost limitations, here waived by FERC 

because of Columbia’s good faith attempts at compliance, as 

well as notice requirements and environmental impact.18 

Further, replacements may not be installed simply because a 

company wishes to increase a pipeline’s capacity. Rather, 

such projects may only be undertaken for “sound engineering 

purposes.” 18 C.F.R. § 157.202(b)(2)(i). Appellees do not 

claim that the replacement project was undertaken for 

anything other than “sound engineering purposes.” Further, 

even if constitutional issues might be implicated in a facial 

challenge, that would be an issue for another case, but that is 

not this case. We note that this constitutional argument was 

 

18And, Columbia would appear to be constrained in replacing 

outside the existing right of way by the extra costs of doing 

so, including costs of negotiation and or litigation with 

landowners.
31

never raised by Appellees, has not been briefed, and therefore 

is not properly before us.

Lastly, the Landowners argue that the “miscellaneous 

rearrangement” provision of Part 157 limits Columbia’s 

ability to replace the pipeline. This is incorrect. 

“Miscellaneous rearrangement” is defined, in part, as “any 

rearrangement of a facility, excluding underground storage 

injection/withdrawal wells, that does not result in any change 

of service rendered by means of the facilities involved, 

including changes in existing field operations or relocation of 

existing facilities.” 18 C.F.R. § 157.202(b)(6). The 

Landowners claim that such a relocation may only take place 

“[o]n the same property.” Id. § 157.202(b)(6)(i). As the 

District Court noted, however, Section 157.202(b)(6) lists the 

“three characteristics of ‘miscellaneous rearrangements’ in 

the disjunctive.” (App. 37.) Thus a relocation may take place 

on the same property, or it could occur, inter alia, “[w]hen 

required by . . . encroachment of residential, commercial, or 

industrial areas.” Id. § 157.202(b)(6)(ii). 

But this is beside the point. The fact that the 

“miscellaneous rearrangement” provision contemplates a 

scenario in which a pipeline must be “relocated” due to 

encroaching residential developments actually only goes to 

show that this is referring to a relocation, and not a 

replacement. Thus, “relocation,” as used here, involves 

moving an existing entity to a new location, whereas 

“replacement” would involve a substitution of new for old. 

Accordingly, Section 157.208(a) treats “miscellaneous 

rearrangements” as something different from “replacements” 

of eligible facilities. Here, Columbia does not seek to move 

the existing pipeline to a new location. Rather, Columbia will 
32

construct a new facility to serve in place of the deteriorating 

one. Thus, as Columbia argues, it is replacing Line 1655, not 

relocating it.19 

Under the plain language of FERC’s regulations, 

Columbia is automatically authorized to replace Line 1655 

according to its proposed plan. Pursuant to its FERC 

Certificate, Columbia has the right of eminent domain over 

the easements that it seeks from the Landowners. 

Accordingly, we will reverse the orders of the District Court 

granting the Landowners’ motions for summary judgment and 

denying Columbia’s motions for partial summary judgment.20

B. Motions for Immediate Possession

Columbia argues that we should grant it immediate 

possession of the easements by entering preliminary 

injunctions. It urges that further delay will be harmful to it 

and the public. If it is not able to begin replacement of Line 

1655 until the determination of just compensation, the timely 

completion of the project will be jeopardized. The District 

 

19 The Landowners, in their brief, argued that Columbia seeks 

an “extension” of its pipeline requiring it to acquire a new 

certificate authorizing the project, pursuant to 15 U.S.C. § 

717f(c)(1)(A). (Landowners’ Br. at 11.) At oral argument, 

however, the Landowners conceded that Columbia does not 

seek an extension of its pipeline. We therefore do not address 

this argument. 

20 Having determined that the District Court erred in its 

disposition of the motions for summary judgment, we will 

dismiss the appeal of the Court’s judgment on the motions to 

alter as moot.
33

Court’s ruling that Columbia had not established the right to 

condemn the necessary easements obviously doomed 

Columbia’s request. Given our ruling that recognizes 

Columbia’s right of eminent domain, the issue of the 

preliminary injunction is properly before us. We believe that 

we can easily decide this issue in the first instance, such that 

remand, with its attendant delay, is unnecessary. 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. The only issue is the amount of compensation—

which will definitely be determined on remand, but the result 

of which can have no affect on Columbia’s rights to the 

easements. That Columbia’s entitlement to relief comes in the 

form of injunctive relief should not dictate that we impose 

similar constraints on our grant of that relief in this context. 

Nonetheless for the sake of completeness and because the 

District Court and Dissent seek to limit Columbia’s 

entitlement we will examine the other factors. We believe 

they weigh in favor of granting the preliminary injunctions to 

which Columbia is entitled. 

In determining whether a party is entitled to a 

preliminary injunction, we normally consider four factors: 

“(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.” Am. Express Travel 
34

Related Servs. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 

2012) (internal quotation marks omitted).

Having already determined that Columbia has 

succeeded on the merits, we now examine whether Columbia 

will suffer irreparable injury if it is denied relief. Columbia 

explains that pipeline construction season is relatively short 

and late to begin — the weather from November through 

February generally makes construction impractical and 

expensive.21 Columbia states that if construction on the 

properties does not begin by now (actually September 1, 

2014), weather events could have a significant disruptive 

effect and potentially delay the replacement of the pipeline 

until 2015. Columbia explains that there are safety concerns 

associated with an aging, unreliable pipeline, and that delay in 

possession of the easements will likely cause it to miss the inservice deadline in time for the beginning of the heating 

season on November 1, 2014. If Columbia misses the inservice deadline, it will lose the right to seek reimbursement 

from its customers. Thus the harm to Columbia appears to 

involve its safety, reputation, and economic interests. 

Columbia points to the Fourth Circuit’s opinion in 

East Tennessee Natural Gas Company v. Sage, 361 F.3d 808 

 

21 Columbia has submitted two affidavits in support of its 

motions for immediate possession–the affidavit of Doug 

Holley (former Manager of Asset Management for Columbia 

Gas and current Vice President of Projects for Contract Land 

Staff, which was hired by Columbia Gas to assist it in 

acquiring the easements for Line 1655) and the affidavit of 

Jacob Frederick (Manager of Project Management for 

Columbia Gas). 
35

(4th Cir. 2004), in arguing that a preliminary injunction is 

warranted where a delay in construction of a pipeline would 

cause “significant financial harm” to both a gas company and 

its customers. Id. at 828-29. The Fourth Circuit explained that 

East Tennessee Natural Gas Company would be forced to 

breach certain contractual obligations if it were forced to 

delay construction in order to hold hearings on just 

compensation. Id. The Landowners argue that Sage is 

inapposite because Columbia has not shown that it will lose 

more than $5 million (which was the estimated loss in Sage). 

The Landowners also point to Third Circuit precedent stating 

that “a purely economic injury, compensable in money, 

cannot satisfy the irreparable injury requirement,” except 

where “the potential economic loss is so great as to threaten 

the existence of the movant’s business.” Minard Run Oil Co. 

v. United States Forest Serv., 670 F.3d 236, 255 (3d Cir. 

2011) (internal quotation marks omitted). Although Columbia 

has not cited a specific dollar amount for the financial harm it 

faces were we to deny relief, the harm alleged is not one of 

“purely economic injury.” Here, there are also safety and 

potential liability concerns caused by an inability to meet the 

heating deadline. 

Moreover, the harm to the Landowners that will result 

if we grant Columbia’s preliminary injunctions is minimal. 

Since we have already determined that Columbia 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 Columbia 

immediate possession of the easements. 
36

Finally, we examine the public interest involved in 

Columbia’s obtaining relief – it is this factor that 

overwhelmingly weighs in favor of granting Columbia’s 

preliminary injunctions. The Landowners state, summarily, 

that “while the public does have an interest in the pipeline 

being replaced for safety reasons, an additional delay in 

replacement of Line 1655 will not result in any substantial 

harm to the public.” Landowners’ Br. 35. Columbia has 

explained, however, that the safety risks associated with a 

delay in the replacement work and acquisition of the 

easements will increase daily. In his affidavit, Jacob 

Frederick elaborated upon the safety risks: “the Pipeline may 

fail, collapse, explode, or leak, causing bodily and property 

injury or death and/or leaving the residents of York County 

without gas service.” (Frederick Aff. 3.) In addition to these 

safety concerns, Columbia has made it clear that the residents 

of York County could possibly be without heat the entire 

winter if construction of the replacement does not begin soon. 

Weighing all of the relevant factors, we conclude that 

Columbia is entitled to injunctive relief and therefore will be 

granted immediate possession of the easements. 

III. Conclusion

In sum, we will reverse the orders of the District Court 

(1) granting the Landowners’ motions for summary judgment, 

and (2) denying Columbia’s motions for partial summary 

judgment and for preliminary injunctions. We will dismiss the 

appeal of the order concerning the motions to alter as moot. 

Finally, we will remand to the District Court to enter the 

preliminary injunctions and conduct further proceedings. 
JORDAN, Circuit Judge, dissenting

The Majority interprets the pertinent regulations to 

unambiguously allow private gas companies to replace a 

pipeline anywhere, on anybody’s property, without any type 

of formal administrative review. In deciding that the Federal 

Energy Regulatory Commission (“FERC”) has extended such 

a broad grant of the sovereign power of eminent domain to 

private companies, the Majority relies on a definition of 

“replacement” not provided in the text of the regulations but 

supplied by Columbia, even though it is at odds with what 

Columbia admits is the common understanding of what 

constitutes a “replacement” and despite the fact that FERC 

had never adopted that definition until, in the middle of an 

unrelated rulemaking, the agency crafted a footnote in 

reaction to the District Court’s decision in this case. In my 

view, the Majority’s limitless reading of the regulations is 

deeply problematic and renders them constitutionally suspect. 

To avoid logical difficulties within the regulations, as well as 

to avoid constitutional concerns, some sort of locational

limitation must serve as a constraint on pipeline replacement 

outside of an original right-of-way. 

I agree with the District Court that the regulations are 

ambiguous and therefore resort to FERC interpretations is in 

order. But FERC has been inconsistent in its explanations of 

the regulations, and the agency’s most recent interpretation 

does not warrant deference. FERC’s previous interpretation,

before it issued its footnoted reaction, reasonably indicated

that there is indeed a locational limitation on pipeline 

replacements outside of an original right-of-way. Because the

pipeline project at issue here does not adhere to any locational

limitation at all, it is not a “replacement” within the meaning 
2

of that term in the regulations. As a consequence, Columbia 

should be required to petition FERC for a new certificate of 

public convenience and necessity before being permitted to 

condemn easements on property previously unaffected by 

Columbia’s pipeline. I therefore respectfully dissent. 

I. Background

On January 7, 1983, Columbia obtained a blanket 

certificate of public convenience and necessity (the 

“Certificate”) that authorized the company to construct and 

operate a natural gas pipeline, known as “Line 1655,” at the 

location specified in the application. The Certificate 

continues to authorize the company to engage in limited, 

routine activities with regard to that main-line facility, as 

expressly identified in FERC regulations. But, “[f]or other 

categories of activities, which may potentially require more 

scrutiny and opportunity for public participation,” the 

Certificate calls for the company to submit to further 

regulatory procedures. (App. at 104 (footnote omitted).) 

Columbia now seeks to use its decades-old Certificate to 

construct a “replacement” pipeline “up to a mile away” from 

the original Line 1655 and on the lawns of the homes of 

Dwayne and Ann Brown, Bradley and Elizabeth Herr, Myron 

and Mary Jo Herr, and Douglas and Tessa Hilyard

(collectively, the “Landowners”). (Appellee’s Br. at 7.) 

Columbia attempted at first to negotiate easements 

across the Landowners’ properties but was refused. It warned 

the Landowners that the offers it had made “do[] not 

represent Columbia’s view of the impact of the project on the 

fair market value [of the properties]. To the contrary, 

Columbia believes that the impact on fair market value will 
3

be much less ... .” (App. at 277, 301, 342, 379.) If the 

Landowners declined Columbia’s initial offers, it threatened,

“Columbia w[ould] pursue the alternate acquisition process 

provided to natural gas companies by the Natural Gas Act.” 

(App. at 278, 302, 343, 380.) In other words, interpreting its 

thirty-year-old Certificate to be a blank check for land 

condemnation, Columbia negotiated with an implicit threat: 

take our offers now or forfeit your property rights later, for 

considerably less money, in a condemnation proceeding.

1

 

After the Landowners maintained their rejection of

Columbia’s offers, the company sought to make good on that

threat by filing the eminent domain suit now on appeal. 

The District Court granted the Landowners’ motions

for summary judgment on the question of Columbia’s 

asserted right to the easements. In denying Columbia’s 

motion for partial summary judgment on the same issue, the 

District Court held that “the project is not automatically 

authorized as a ‘replace[ment]’ of an ‘eligible facility’ 

pursuant to 18 C.F.R. §§ 157.202(b)(2)(i) & 157.208(a).” 

(App. at 35.) Columbia petitioned to alter or amend the 

judgment, which was denied. The Court observed that 

“[Columbia]’s attack does not point to an actual error in 

reasoning behind the Court’s judgment. Instead, Columbia

 

1 The Majority labels this a “sensationalist reading of 

Columbia’s statement” that “has no basis in the record.” 

(Maj. Op. at 7 n.3) I will leave it to the readers of our 

competing opinions in this case to determine who may be 

indulging in the more extravagant language. Suffice it to say 

here that, in the language quoted above, there is a basis for 

the observation that Columbia negotiated with the threat of 

condemning the easements for less than the earlier offers. 
4

... asserts that the Court should wholly defer to an agency 

interpretation that – according to precedent that Columbia ...

ignores – is properly due very little deference, if any beyond 

its power to persuade.” (App. at 56.) The Court’s reference 

to “an agency interpretation” is to FERC’s “about-face” (App. 

at 54), discussed below, on whether a locational limitation 

restricts where a “replacement” pipeline can be put. 

II. Discussion

Until recently, Columbia would not have been able to 

construct pipeline on a new route, as they are attempting to do 

in the proposed Line 1655 project, without seeking a new 

certificate of public convenience and necessity associated 

with the new right-of-way. At least not according to FERC. 

In 2003, that agency issued a notice entitled Emergency 

Reconstruction of Interstate Natural Gas Facilities Under the 

Natural Gas Act, 68 Fed. Reg. 4120, 4122 (proposed Jan. 17, 

2003) (to be codified at 18 C.F.R. pt. 157) (hereinafter 

Emergency Reconstruction Notice or Notice),

2

in which it

discussed at length its then-current interpretation of the 

regulations now in question, particularly Title 18, Part 157 of 

the Code of Federal Regulations, which governs “eligible 

facilities,” 18 C.F.R. § 157.202, .208. An eligible facility is a 

natural-gas installation, such as a pipeline, eligible for 

alteration, such as replacement, under the original certificate 

 

2 Ultimately, FERC promulgated a Final Rule based on 

the Emergency Reconstruction Notice. Emergency 

Reconstruction of Interstate Natural Gas Facilities Under the 

Natural Gas Act, 68 Fed. Reg. 31,596 (May 18, 2003) (to be 

codified at 17 C.F.R. pt. 157) (hereinafter Emergency 

Reconstruction Final Rule).
5

granted for the development of that facility. 18 C.F.R. 

§ 157.202(b)(2).3 FERC apparently saw a shortcoming in the 

regulations, namely that they do not allow companies to 

effectively respond to an emergency that might require a 

pipeline to be moved or new pipeline to be installed on a 

route that varies significantly from the right-of-way 

contemplated in an already-issued certificate. Id. at 4120-24. 

For example, in the Emergency Reconstruction Notice, FERC 

indicates that § 2.55 of the regulations,4 which governs 

replacement projects within an authorized right-of-way, is 

insufficient to address an emergency situation because it does 

not allow for construction “outside the footprint of existing 

facilities.” Id. at 4123. 

The Notice also says that “[P]art 157 . . . provides [a] 

vehicle for reconstruction of facilities ... but this authority is 

... limited.” Id. at 4121. It goes on to explain that, “[a]cting 

 

3 Section 157.202(b)(2)(i) provides, in relevant part,

that “eligible facility includes main line, lateral, and 

compressor replacements that do not qualify under § 2.55(b) 

of this chapter because they ... will not satisfy the location or 

work space requirements of § 2.55(b).” 18 C.F.R. 

§ 157.202(b)(2)(i). 

4 Section 2.55(b)(1) excludes from the definition of 

facilities the construction of which requires obtaining a new 

certificate those projects “which constitute the replacement of 

existing facilities that have or will soon become physically 

deteriorated or obsolete, to the extent that replacement is 

deemed advisable, if ... [t]he replacement facilities ... will be 

located in the same right-of-way or on the same site as the 

facilities being replaced.” 18 C.F.R. § 2.55(b)(1)(ii).
6

under blanket authority, [i.e., the authority under Part 157 

conferred by a certificate,] a pipeline may install new 

facilities on a new right-of-way, which may be acquired 

through the pipeline’s exercise of eminent domain.” Id. That 

authority “permit[s] locating a portion of mainline ... 

replacement facilities outside, but presumably adjacent to, an 

existing right-of-way ... .” Id. at 4122 (emphasis added). 

FERC further recognized this locational limitation on Part 

157 authority by saying that “[t]hese regulations ... do not 

appear to contemplate mainline construction over an entirely 

different route as may be necessary to circumvent the site of a 

disaster if immediate replacement is necessary before the 

original site is again available.” Id. (emphasis added). 

I understand that language to mean, as the District 

Court did, that Part 157 authorizes “replacements” that may 

involve placing a pipeline some minimal distance from its 

original right-of-way but that such a project must indeed 

involve only a very limited deviation from that route. The 

Majority, at Columbia’s urging, sees the matter quite 

differently. As Columbia put it in argument before the 

District Court, when it comes to replacements, “[u]nder 157 

there is no location restriction. There is no proximity 

restriction.” (App. at 776.) 

What there is, in short, is an ambiguity in the use of 

the word “replacement” in the regulations. See In re Phila. 

Newspapers, LLC, 599 F.3d 298, 304 (3d Cir. 2010) (stating 

that a regulatory provision is ambiguous “where the disputed 

language is reasonably susceptible of different 

interpretations” (citation and internal quotation marks 

omitted)). Despite the Majority’s assertion to the contrary, 

the meaning of that term is not clear, and we are left to 
7

dispute whether a pipeline “replacement” outside of an 

original right-of-way includes a locational limitation or is 

instead a concept without physical limits. That ambiguity is 

the first of two related problems in this case. The second is 

that the alternative interpretations of the ambiguous 

regulation are not equally innocuous. The one advocated by 

Columbia and adopted by the Majority raises internal 

inconsistencies and constitutional issues that can and ought to 

be avoided. I discuss both of those problems in turn. 

A. Ambiguity & Deference

1. Ambiguity

The Majority concludes that the regulations are 

unambiguous primarily by relying on the interplay between 

the right-of-way locational limitation in § 2.55(b) and the lack 

of an express locational limitation in the definition of 

“eligible facility” in § 157.202(b)(2)(i). For two reasons, I 

disagree with the conclusion my colleagues draw from that 

difference. First, sound principles of interpretation “dictate 

that a regulatory scheme should be read as a whole, so that 

effect is given to all its provisions.” Cumberland Coal Res., 

LP v. Fed. Mine Safety & Health Review Comm’n, 515 F.3d 

247, 254 (3d Cir. 2008) (internal quotation marks omitted). 

As described in more detail herein, the Majority’s approach 

fails to do that: it conflates “replacement” and “relocation,” 

even though each has a specific and unique meaning in the 

regulations. Also, by interpreting the term “replacement” so 

broadly, it undermines § 2.55(b) because it leaves practically 

no limitation for replacement projects outside of an existing

right-of-way. Further, it allows gas companies to circumvent 

the important notice and hearing requirements of §§ 157.6 
8

and 157.10, which necessitate providing notice to both 

directly and indirectly affected property owners and an 

opportunity to participate in a regulatory hearing regarding 

certificate petitions.5 

Second, the phrase “replacements that do not qualify 

under § 2.55(b) ... because they ... will not satisfy the 

location or work space requirements of § 2.55(b),” 18 C.F.R. 

§ 157.202(b)(2)(i), is ambiguous because Part 157’s use of 

“replacement” is reasonably susceptible to at least two 

different interpretations. The District Court, relying on the 

dictionary, defined “replace” as “to place again: restore to a 

former place, position, or condition,” which, as the Court 

noted, suggests either no relocation or an insignificant 

relocation. (App. at 32.) The Majority, however, disagrees

with that definition and says that, “[p]ut simply, in common 

parlance, ‘replace’ can mean to substitute for.” (Maj. Op. at 

21.) That is one reading of “replace.” But, although my 

colleagues think their selected definition is the only 

applicable one, another and better reading in this context, 

 

5

In this same vein, the Majority claims that a 

significant check on a natural gas company’s power to 

condemn easements under Part 157 for pipeline replacements 

is that the company must have within its possession a blanket 

certificate. But FERC’s statement that “[a]lmost all interstate 

gas pipelines now hold [P]art 157 blanket certificates that 

permit the automatic construction ... of certain ‘eligible 

facilities’” suggests that the Majority’s distinction is in effect 

no distinction at all. Emergency Reconstruction Final Rule, 

68 Fed. Reg. at 31,598. 
9

which involves locational issues, is the one chosen by the 

District Court.

6

 

The Majority’s preferred reading of “replace” leads it 

to declare that applying a location-focused definition of the 

term is “absurd.” (Id. at 24.) It asserts that the position taken 

by the District Court and that I am advocating requires the 

replacement pipeline to be in exactly the same spot as the 

original. That is not so, and ordinary speech is not so rigid, as 

one of the Majority’s own examples indicates: “after dusting 

the vase, she replaced it on the shelf.” (Id. at 25 (internal 

quotation marks omitted).) When the vase makes it back onto 

the shelf, it has been replaced there, whether it is an inch or 

two to the left or right of where it had been. The location for 

the replacement is not a matter of pinpoint accuracy, but there 

is a limit. No one would describe the action as “replacing” 

the vase if it were put in another room. The Majority’s

certitude cannot mask the fundamental problem with its view. 

If the only requirement for a replacement is that it 

“substititut[es] new for old” (Maj. Op. at 21, 32), then a gas 

company may now replace pipeline originally located in 

York, Pennsylvania, anywhere in the United States, from 

 

6 The Majority also claims that I would require 

Columbia to use the same pipe in its construction efforts for 

those efforts to be categorized as a “replacement.” (Maj. Op. 

at 25-26.) The Majority cherry-picks examples from the 

dictionary and improperly treats the characteristics of those 

suggestions as limitations on the term “replace.” Nothing in 

what the District Court said or what I am saying has anything 

at all to do with the materials that may be chosen for a 

replacement project. This case is about where pipes are going 

into the ground, not which pipes are being used. 
10

Portland to Poughkeepsie, as long as that original pipeline is 

somehow “old” and the replacement pipeline is somehow 

“new.” Whatever the interpretation of “replace,” that hardly 

seems the correct one, let alone the only plausible one. As 

the District Court said, that reading “puts an excessively 

expansive gloss on the common meaning of” the word. (App. 

at 32.) At the very least, “replacement” is ambiguous in this 

context, and so is the regulatory provision of which that term

is a part.

Columbia tries to avoid that conclusion by asserting

that the term “replacement” “has a specific meaning under the 

Code of Federal Regulations” (Appellant’s Opening Br. at 24) 

that is “entirely different ... than in everyday parlance” 

(Appellant’s Reply Br. at 7). In other words, Columbia 

acknowledges that its proposed definition of replacement is 

not the only or even the most common interpretation. One 

might expect that, since Columbia and the Majority are 

rejecting “everyday parlance,” their very different 

understanding of the word “replacement” would be rooted in 

some clear language in the Code of Federal Regulations

delineating a specialized meaning. Cf. Rowland v. Cal. Men’s 

Colony, 506 U.S. 194, 200 (1993) (“[C]ourts would hardly 

need direction where Congress had thought to include an 

express, specialized definition for the purpose of a particular 

Act ... .”). But it is not. The specialized, non-customary 

definition they rely on is nowhere to be found in the 

regulations themselves; nor is it in any agency interpretation 

pre-dating the District Court’s decision. Instead, in deciding 

that the word is unambiguous, the Majority relies on 

Columbia’s favored definition, which the Majority says is 

dictated by “clear understanding.” (Maj. Op. at 24.) Despite 

Columbia’s admission about “everyday parlance” 
11

(Appellant’s Reply Br. at 7), and despite the Majority’s own 

admission that “‘replace’ can mean to substitute for, or it can 

mean ... to put back in the same position” (Maj. Op. at 21

(emphasis added)), the Majority proclaims that the “only 

appropriate” definition is the one “contain[ing] no inherent 

adjacency requirement.” (Id. at 21-22.) If assertion were 

argument, that might be more persuasive, but declaring that 

something is unambiguous does not make it so. 

Fortunately, we do not, in this administrative-law

setting, need to choose between different dictionary

definitions. The fact that there are at least two ways of 

understanding the word “replacement” shows that it is

ambiguous, which requires us to consider how FERC has 

interpreted the word. See Christensen v. Harris Cnty., 529 

U.S. 576, 588 (2000) (“Auer deference is warranted only 

when the language of the regulation is ambiguous.”). That 

effort raises its own choices.

2. Deference

As noted earlier, FERC looked at the issue of 

replacement when it considered the Emergency 

Reconstruction Notice. Although the Notice is just that – a 

notice of proposed rulemaking – it answered the question of 

whether an additional limiting principle is necessary for 

replacements outside of a right-of-way authorized in a FERCgranted certificate. FERC published the Notice for the very 

reason that there was no authority under Part 157 to replace a 

pipeline in a location other than an existing right-of-way or 

“outside, but presumably adjacent to, an existing right-ofway,” even in an emergency. Emergency Reconstruction

Notice, 68 Fed. Reg. at 4122. FERC itself acknowledged the 
12

locational limitation on pipeline replacement, saying the 

regulation “do[es] not appear to contemplate mainline 

construction over an entirely different route as may be 

necessary to circumvent the site of a disaster.” Id.

For a decade that was the last word on the matter, but

one should never underestimate the continuing malleability of 

words. Despite FERC’s well-grounded and plainly stated 

insight about the locational limitations in Part 157, the agency 

made a 180-degree turn one week after the District Court 

issued its opinion in this case and decided that mainline 

construction really is a free-form exercise after all. In a rule

published on November 22, 2013, Revisions to Auxiliary 

Installations, Replacement Facilities, and Siting and 

Maintenance Regulations, 78 Fed. Reg. 72794, 72804 n.78 

(Dec. 4, 2013) (to be codified at 18 C.F.R. pts. 2, 157, 380)

(hereinafter Revisions to Auxiliary Installations), FERC 

inserted a footnote designed to “[e]ffectively[] ... repudiate[] 

the District Court’s interpretation of the regulation at issue”

(Maj. Op. at 18). In that footnote, number 78 to be precise, 

FERC gave what amounts to an on-the-fly approval of the 

Line 1655 project by stating that “the Part 157 blanket 

certificate regulations impose no limitations on the placement 

of the facilities.” Revisions to Auxiliary Installations, 78 Fed. 

Reg. at 72804 f.78. This new “Footnote Rule,” as I will refer 

to it for convenience, is directly contrary to the interpretation 

provided in the Emergency Reconstruction Notice. Id. The

question then arises: which FERC interpretation should be 

heeded?

A choice has to be made because an agency’s

interpretations of its own ambiguous regulations are, under 

Supreme Court precedent, entitled a degree of deference. The 
13

direction given in Auer v. Robbins, 519 U.S. 452 (1997), is 

that the agency’s interpretation is controlling unless it is 

“plainly erroneous or inconsistent with the regulation.”

7

Id. at 

461 (internal quotation marks omitted). Nevertheless, in 

Christopher v. SmithKline Beecham Corp., the Court recently 

cautioned that “this general rule [of deference] does not apply 

in all cases.” 132 S. Ct. 2156, 2166 (2012); see also Harry T. 

Edwards et al., Federal Standards of Review, ch. XIV (“[T]he 

deference afforded an agency’s interpretation of its own 

regulations is significant, but it is not without limits.”). 

Christopher teaches that, once a regulation has been 

determined to be ambiguous, two questions should be 

considered in deciding whether an agency’s new

interpretation of the ambiguous provision is entitled to Auer

deference: (1) whether the new interpretation is “plainly 

erroneous or inconsistent with the regulation,” and (2) 

 

7

It bears mentioning that at least three Supreme Court 

justices have indicated an interest in revisiting the holding in 

Auer. In Decker v. Northwestern Environmental Defense 

Center, 133 S. Ct. 1326 (2013), Chief Justice Roberts, joined 

by Justice Alito, concurred in applying deference to an 

agency interpretation, but explained that, even though it 

would have been improper to reconsider Auer in that case 

because the parties did not properly preserve the issue in their 

briefs, the Court should be prepared to do so in a subsequent 

case. Id. at 1338 (Roberts, C.J., concurring). Justice Scalia, 

in dissent, noted his discontent with what Auer has become: 

“For decades, and for no good reason, we have been giving 

agencies the authority to say what their rules mean, under the 

harmless-sounding banner of ‘defer[ring] to an agency’s 

interpretation of its own regulations.’” Id. at 1339 (Scalia, J., 

dissenting). 
14

whether the interpretation “reflect[s] the agency’s fair and 

considered judgment on the matter in question.” Christopher, 

132 S. Ct. at 2166 (internal quotation marks omitted). An 

interpretation does not reflect fair and considered judgment if, 

for example, it “conflicts with a prior interpretation,” or is 

“nothing more than a convenient litigating position,” or is “a 

post hoc rationalizatio[n] advanced by an agency seeking to 

defend past agency action against attack,” or if deference 

“would seriously undermine the principle that agencies 

should provide regulated parties fair warning of the conduct 

[a regulation] prohibits or requires.” Id. at 2166-67

(alterations in original) (citations and internal quotation marks 

omitted). 

Christopher also expressed a concern that agencies 

may take improper advantage of the deference extended to 

them under Auer: “Our practice of deferring to an agency’s 

interpretation of its own ambiguous regulations undoubtedly 

has important advantages, but this practice also creates a risk 

that agencies will promulgate vague and open-ended 

regulations that they can later interpret as they see fit, thereby 

‘frustrat[ing] the notice and predictability purposes of 

rulemaking.’” Id. at 2168 (alteration in original) (footnote 

omitted) (quoting Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. 

Ct. 2254, 2266 (2011) (Scalia, J., concurring)). 

If a court finds that either the “plainly erroneous” or 

“fair and considered judgment” factor cuts against the 

agency’s interpretation, that interpretation is reviewed not 

under Auer, but rather under the Supreme Court’s decision in 

Skidmore v. Swift & Co., 323 U.S. 134 (1944). See, e.g., 

Christopher, 132 S. Ct. at 2168-69 (turning to the Skidmore

standard after concluding that “whatever the general merits of 
15

Auer deference, it is unwarranted here”). Under Skidmore, 

deference is “proper only if the [agency’s view] has the 

power to persuade, which ‘depend[s] upon the thoroughness 

evident in its consideration, the validity of its reasoning, [and] 

its consistency with earlier and later pronouncements.’” 

Vance v. Ball State Univ., 133 S. Ct. 2434, 2443 n.4 (2013) 

(second and third alterations in original). In short, Skidmore

deference is “a lesser degree of deference” than is given 

under Auer because it considers the interpretation as having at 

most the power to persuade, not the power to control. 

Hagans v. Commn’r of Soc. Sec., 694 F.3d 287, 294-95

(2012).8 

With that guidance in mind, I turn to the Emergency 

Reconstruction Notice and the Footnote Rule. The 

interpretation in the Notice acknowledges a much-needed 

constraint on how far a replacement project can stray from an

original right-of-way. The Notice instructs that Part 157 does 

not authorize a pipeline replacement that proceeds on an 

entirely new route or is beyond what may fairly be 

characterized as being on or “adjacent” to the original rightof-way. If the proposed replacement pipeline does not fall 

within those limitations, the gas company must approach 

FERC for a new certificate. Nothing about the Notice 

 

8 The requirement to consider under Skidmore an 

agency interpretation that has failed the test for Auer

deference shows just how deeply embedded the idea of 

deference to agencies has become. If an agency interpretation 

has already been determined to be “plainly erroneous” or 

something less than the product of “fair and considered 

judgment,” it would seem very unlikely to have the power to 

persuade, but the Skidmore base must nonetheless be touched. 
16

indicates that the interpretation it provides is plainly 

erroneous or fails to reflect FERC’s fair and considered 

judgment. It would seem, then, to be guidance of the kind 

suited for Auer deference. 

My colleagues, however, endeavor to downplay the 

importance of the Notice. They read its statement that Part 

157 “permit[s] locating a portion of mainline[] ... 

replacement facilities outside, but presumably adjacent to, an 

existing right-of-way,” Emergency Reconstruction Notice, 68 

Fed. Reg. at 4122, as meaning that, while practical 

considerations will generally prompt gas companies to build 

on the same or an adjacent route, those utilities need not do 

so. The word that the Majority uses to turn language of 

limitation upside down is “presumably.” But such heavy 

reliance on that word to undo the express limitation in the 

Notice is misplaced. In the very next sentence of the Notice, 

FERC made clear that the regulations “do not appear to 

contemplate mainline construction over an entirely different 

route.” Id. The Notice thus states and restates the necessary 

principle that should be guiding our instruction to Columbia

today: if you want to take someone else’s property for your

pipeline, stay near your right-of-way and do not construct 

along a new route; otherwise, come back for a new certificate.

The Majority deems the advice in the Emergency 

Reconstruction Notice to be irrelevant because it “dealt 

specifically with emergencies such as a ‘sudden unanticipated 

loss of natural gas or capacity,’ not deteriorating pipelines.” 

(Maj. Op. at 27 n.16.) Although it is true that the Notice 

advocated adoption of certain new regulations focused on

how to better deal with emergency situations, that does not 

mean that the interpretation it provides of the existing 
17

regulations in Part 157 is of no consequence. The

interpretation provided in the Notice is very relevant indeed, 

being, as it is, a FERC statement about the meaning of Part 

157 that can rightly be called “just and considered.” It gives 

guidance on what Part 157 authorizes and what its restrictions 

are, without limiting those restrictions to emergency 

situations. See Emergency Reconstruction Notice, 68 Fed. 

Reg. at 4122 (“[P]art 157, subpart F, permits replacement 

construction that uses temporary workspace beyond the 

bounds of the temporary workspace previously used to 

construct the original facilities as necessary to install 

replacement facilities. These regulations also permit locating 

a portion of mainline, lateral, or compressor replacement 

facilities outside, but presumably adjacent to, an existing 

right-of-way where, for whatever reason, the new facilities 

could not be placed entirely within the original facilities’ 

existing right-of-way.” (emphasis added)). The interpretation 

advanced in the Notice is therefore generally applicable here. 

The Footnote Rule, by contrast, is a textbook example 

of an agency shooting from the hip rather than giving a 

question fair and considered judgment. Despite the 

Majority’s comments to the contrary, FERC’s creation of 

footnote 78 one week after the District Court’s opinion shows 

it to be a hastily arrived-at decision, devoid of the hallmarks 

of an agency interpretation deserving deference. The timing 

reveals the Footnote Rule as a post hoc rationalization meant

to defend a past action, in this case Columbia’s attempt to 

obtain property outside of the right-of-way allowed in its 

Certificate. Cf. Christopher, 132 S. Ct. at 2166 (noting that 

regulatory changes reflecting post hoc rationalization do not 

receive Auer deference). Moreover, the insertion of the new 
18

interpretation in a footnote in the middle of an unrelated rule9

about auxiliary facilities emphasizes FERC’s eagerness to get 

it out as rapidly as possible, with the aim of undoing the 

District Court’s decision. Again, that serves to highlight the 

interpretation as a post hoc rationalization of Columbia’s 

asserted condemnation power. Cf. Martin v. Occupational 

Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) 

(declining to defer to “‘post hoc rationalizations’ ... advanced 

for the first time in the reviewing court”).10 

 

9 Given that footnote 78 has nothing to do with the 

subject of the Revisions to Auxiliary Installations – which is 

auxiliary facilities, see Revisions to Auxiliary Installations, 78 

Fed. Reg. at 72795 (explaining that the purpose of 

promulgating the revisions is “to clarify” regulations 

governing “auxiliary installations added to existing or 

proposed interstate transmission facilities”) – it is ironic that 

the Majority endeavors to dismiss as mere dicta FERC’s 

comments in the Emergency Reconstruction Notice. Those 

comments had the merit of being pertinent to the subject of 

the Notice. 

10 Columbia rightly points out that the Supreme Court 

has deferred to after-the-fact interpretations before, 

particularly in an amicus brief filed after the case had reached 

that Court. See Decker v. Nw. Envt’l Def. Ctr., 133 S. Ct. 

1326, 1337-38 (2013). But the Supreme Court in Decker 

looked past the post hoc nature of that brief primarily because 

“[t]he agency [in question] has been consistent in its view that 

the types of discharges at issue here do not require ... 

permits.” Id. Here, however, the Footnote Rule contradicts 

the Emergency Reconstruction Notice’s prior interpretation of 

Part 157. 
19

The Majority endeavors to pass off the new 

interpretation in the Footnote Rule as “perfectly 

harmoni[ous]” with what was previously said in the 

Emergency Reconstruction Notice (Maj. Op. at 29), but that 

ignores the warning in the Notice that Part 157 does “not 

appear to contemplate mainline construction over an entirely 

different route as may be necessary to circumvent the site of a 

disaster if immediate replacement is necessary before the 

original site is again available,” Emergency Reconstruction 

Notice, 68 Fed. Reg. at 4122. Because FERC opined that Part 

157 does not allow new routing for a “replacement” pipeline 

 

The Majority also says that FERC is not “‘seeking to 

defend past agency action against attack’” and thus the 

Footnote Rule cannot be read as a post hoc rationalization. 

(Maj. Op. at 30 (quoting Christopher, 132 S. Ct. at 2166).) 

But FERC is absolutely justifying its failure to require 

Columbia to obtain a new certificate of merit for proposed 

Line 1655. Moreover, even if there were no agency decision 

to defend, the analysis is not so limited. Both the Auer and 

Decker Courts permitted relevant federal agencies to submit 

after-the-fact interpretations in amicus briefs in support of 

another agency’s application of their regulations and not their 

own actions. See Decker, 133 S. Ct. at 1337-38 (EPA 

defending state decision-maker’s determination); Auer, 519 

U.S. at 461 (Secretary of Labor defending members of the St. 

Louis Board of Police Commissioners). Despite that 

difference, the Supreme Court went on to consider whether 

those interpretations were post hoc rationalizations. Decker, 

133 S. Ct. at 1337-38; Auer, 519 U.S. at 461. In this case, 

one could interpret FERC to be likewise defending another’s 

interpretation of its rules; the fact that the interpreter is a 

private company is of no moment. 
20

even in the event of an emergency, there is precious little 

logic and no consistency in saying that new routing is 

permitted in the absence of an emergency. It is thus not 

harmonious to assert, as the Footnote Rule does, that “Part 

157 ... regulations impose no limitations on the placement of 

[replacement] facilities.” Revisions to Auxiliary Installations,

78 Fed. Reg. at 72804 n.78. FERC at first interpreted Part 

157 to include a geographic limitation on replacement 

projects. The Footnote Rule, issued with no notice and within 

a week of the judicial action to which it was a reaction, 

purports to completely do away with that limitation. The two 

interpretations are plainly in opposition. 

FERC itself tacitly admits as much in footnote 78. It 

says, “[w]hile the Commission has indicated previously that it 

is contemplated that replacement facilities constructed under 

blanket authority[, i.e., pursuant to a FERC-granted 

certificate,] would usually be located adjacent to, if not 

within, an existing right-of-way, [Part 157] permit[s] the 

construction of non-main line facilities and main line 

facilities[] ... without restriction on their location.” Id. No 

one, not even those in the Majority, can claim that what 

FERC was doing in that passage was saying how consistent 

its newly announced position is with its past statements. The

evident purpose in giving a nod to what was said previously 

was to acknowledge but minimize the change in position. 

The while-we-previously-said locution hangs a bell on the 

difference. 

That does not alter my colleagues’ approach, though. 

They look to the use of the word “usually” – a replacement 

will usually be adjacent to or within an existing right-of-way

– and they conclude that it must mean FERC never really laid 
21

down an interpretation that restricts the location of a 

replacement pipeline. (See Maj. Op. at 29.) Like the word 

“presumably” in the Notice, however, the word “usually” in 

the Footnote Rule cannot carry the analytical weight the 

Majority puts on it. Rather than showing there is no rule, 

“usually” and “presumably” are words indicating that there is 

in actuality a standard way of proceeding – a rule, so to speak

– one to which occasional exceptions may be found but a rule 

nonetheless. A statement that repudiates what had been the 

rule cannot rightly be labeled as being in harmony with the 

rule. 

There is yet another reason to reject footnote 78 as the 

product of fair and considered judgment. In Christopher, the

Supreme Court noted that, “where[] .... an agency’s 

announcement of its interpretation is preceded by a very 

lengthy period of conspicuous inaction, the potential for 

unfair surprise is acute.” 132 S. Ct. at 2168. Here, FERC 

issued the Footnote Rule in November 2013, over a decade 

after it published the Emergency Construction Notice. 

Anyone paying attention would certainly be surprised to find 

that what had been, by the agency’s own interpretation, a 

presumptive limitation on where a pipeline could be replaced 

was suddenly no limitation at all. Deference to the Footnote 

Rule under such circumstances serves to foster cynicism and 

to subvert the purpose of formal rulemaking.11 

 

11 In addition to not being the product of fair and 

considered judgment, the Footnote Rule is plainly erroneous 

because the interpretation renders the relevant regulations 

internally inconsistent and constitutionally infirm, as I will 

discuss further hereafter. 
22

FERC’s new interpretation of Part 157 thus ought not 

receive the benefit of Auer deference, and it is no more

salvageable under Skidmore. Footnote 78 is unpersuasive for 

all of the points already discussed. Cf. Univ. of Tex. Sw. Med. 

Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (noting an 

agency’s “explanations lack the persuasive force that is a 

necessary precondition to deference under Skidmore”). It 

fails to persuade on another ground as well: it is inconsistent

with Part 157 itself. If I understand the Majority correctly, 

Columbia’s project can be considered as both a relocation and 

a replacement. That at least appears to be what Columbia 

believes, as shown in comments before the District Court. At 

a single hearing, it referred to the proposed Line 1655 

construction interchangeably as a “replacement” and a 

“relocation.” (Compare App. at 770 (“The pipeline itself is 

an eight inch gas main. The gas main is going to be 

relocated.”), and App. at 787 (“We are not rerouting. We are 

relocating ... .”), with App. at 775 (“We have the right to 

construct a replacement main that would not qualify under a 

2.55 analysis.”).) 

The words “replacement” and “relocation” are not 

intrinsically incompatible as synonyms. Part 157, though,

treats them differently, as denoting separate methods of 

authorizing pipeline construction, with different requirements 

applicable to each. When we examine a statute, “[w]e 

generally seek to respect Congress’ decision to use different 

terms to describe different categories of people or things.” 

Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1708 (2013). 

Our approach in reviewing a regulation should be the same. 

Part 157 defines authorized “replacement” projects as 

follows: “[E]ligible facility includes main line, lateral, and 

compressor replacements that do not qualify under § 2.55(b) 
23

[governing work within a certificate-designated right-of-way] 

... because they will ... not satisfy the location or work space 

requirements of § 2.55(b).” 18 C.F.R. § 157.202(b)(2)(i) 

(emphasis added). As for a “relocation” project, the 

regulation couches it not as a replacement but as a

“miscellaneous rearrangement,” saying, “[m]iscellaneous 

rearrangement of any facility means any rearrangement of a 

facility ... including changes in existing field operations or 

relocation of existing facilities ... .” Id. § 157.202(b)(6)

(emphasis added). Because “replacement” and “relocation” 

are intended to mean different things in Part 157, an 

interpretation that allows the concept of the former to absorb

the latter is dubious, but that is what the Majority’s 

interpretation does. As noted by the District Court and as 

mentioned above, the definition of “replace” advocated by 

Columbia – and now adopted by the Majority – “puts an 

excessively expansive gloss on the common meaning” of that 

word (App. at 32), and thereby improperly allows Columbia 

to “replace” pipeline by constructing new pipeline a mile (or, 

for that matter, any distance) from the original right-of-way. 

When a replacement pipeline can go anywhere, there is no 

need to consider it for “relocation,” and the separate provision 

for relocation is thus made of no effect.

In sum, the Footnote Rule is entitled to neither Auer

nor Skidmore deference, and the interpretation in the 

Emergency Reconstruction Notice remains the best guidance. 

The District Court did not err in deciding that, because the 

Line 1655 project is neither within nor adjacent to the 

existing right-of-way,12 the project is not a “replacement” 

 

12 The District Court noted that this case “does not rise 

and fall based on the definition of adjacency” because it is not 
24

under Part 157, Emergency Reconstruction Notice, 68 Fed. 

Reg. at 4122, and thus cannot proceed without an additional 

certificate of public convenience and necessity. 

B. Constitutional Concerns13

An additional reason to adopt the Emergency 

Reconstruction Notice’s interpretation of Part 157 is that the 

Majority’s interpretation would render the regulations 

constitutionally infirm. The Majority’s broader interpretation 

of “replacement” inappropriately grants to a private company 

eminent domain power coextensive with that of the state and 

strips future aggrieved landowners of their rights to formal 

 

a close call whether the new route for Line 1655 is adjacent –

the proposed route is “entirely new.” (App. at 53 n.1.) 

13 The Majority notes that no constitutional arguments 

were raised in this case. That may be so, yet “[w]hen an issue 

or claim is properly before the court, the court is not limited 

to the particular legal theories advanced by the parties, but 

rather retains the independent power to identify and apply the 

proper construction of governing law.” Kamen v. Kemper 

Fin. Servs., Inc., 500 U.S. 90, 99 (1991). We are attempting 

to understand the meaning of the regulation in question, and I 

am merely applying the canon of constitutional avoidance. 

That canon “is not a method of adjudicating constitutional 

questions”; rather, it “is a tool for choosing between 

competing plausible interpretations of a statutory [or, in this 

case, a regulatory] text.” Clark v. Martinez, 543 U.S. 371, 

381 (2005). The aim is to avoid constitutional problems, and 

we are not bound by the parties’ arguments in determining 

which interpretive tools are relevant and how they bear on the 

proper construction of governing law. 
25

administrative procedures. An essential canon of 

construction is that, if a court is faced with two possible 

interpretations of a regulation, “by one of which [the 

regulation] would be unconstitutional and by the other valid, 

[the court’s] plain duty is to adopt that which will save the 

[regulation].” Nat’l Collegiate Athletic Ass’n v. Governor of 

N.J., 730 F.3d 208, 226 n.8 (3d Cir. 2013) (quoting NLRB v.

Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937)) 

(internal quotation marks omitted). The more limited 

interpretation of “replacement” provided by the Emergency 

Reconstruction Notice should accordingly be applied to 

preserve §§ 157.202 and 157.208 as they relate to main-line 

replacements of eligible facilities. 

The Supreme Court has recognized that there are 

tighter bounds on the exercise of eminent domain by a utility

company than there are on that power when wielded by the 

sovereign. In United States v. Carmack, the Court held that 

“[a] distinction exists ... in the case of statutes which grant to 

others, such as public utilities, a right to exercise the power of 

eminent domain on behalf of themselves. These are, in their 

very nature, grants of limited powers.” 329 U.S. 230, 243 

n.13 (1946) (emphasis added); see also Nat’l R.R. Passenger 

Corp. v. Two Parcels of Land, 822 F.2d 1261, 1264-65 (2d 

Cir. 1987) (“Amtrak has not been authorized to exercise the 

sovereign’s power of eminent domain. It has been granted a 

limited power, within the meaning of United States v. 

Carmack, to condemn land ‘required [for] intercity rail 

passenger service.’” (alteration in original) (citations 

omitted)). That conclusion makes sense: when the power of 

eminent domain is partially delegated to a private company, 

that delegation must be as limited as possible to protect 

landowners from abusive takings under the Fifth Amendment. 
26

The Majority seems to suggest that a private 

company’s self-interest is a satisfactory limitation on the 

scope of the delegated power to take other people’s property. 

(See Maj. Op. at 26 (“A replacement pipeline would 

‘presumably’ be adjacent to an existing pipeline for ...

practical reasons – cost ... and convenience.”); id. at 30-31

n.18 (“Columbia would appear to be constrained in replacing 

outside the existing right of way by the extra costs of doing 

so, including costs of negotiation and or litigation with 

landowners.”).) I am a great believer in the power of selfinterest, but it does not serve as a constitutional check. We 

do not allow the government to condemn people’s land 

without layers of procedural protection in place, and we 

certainly cannot allow a private company to do so simply on 

the assurance that it has reasons to exercise restraint. Yet an 

unsupervised condemnation power is exactly what Columbia 

claims to have under Part 157. When asked by the District 

Court if the interpretation Columbia was proposing meant 

that, in pursuing the Line 1655 “replacement” project, the 

company “could construct this line in, say, Lincoln, 

Nebraska,” Columbia’s counsel responded, “On a theoretical 

level you could.” (App. at 776.) Counsel then outlined 

“practically” why that would not happen (id.), but that, as I 

will explain, amounts to cold comfort. “Trust me” is not a 

reassuring response to the question, “What will you do with 

the sovereign’s power?”

Although Columbia contends that there are no 

locational limitations on replacing a main line under Part 157, 

it points to four things that it says, and the Majority agrees, 

should mollify concerns about giving to a utility the full 

condemnation power of the sovereign without the structural 

and procedural checks that limit the government. Those four 
27

things are monetary restrictions, a notice requirement, an 

environmental-impact-statement requirement, and a reporting 

requirement. In this case, none of them function as a 

meaningful restraint.

It is true that a “replacement” pipeline can be built 

with less FERC supervision if its cost is below a monetary 

threshold. In 2013, the year Columbia began work on Line 

1655, that threshold was $11,000,000, and staying below it 

meant that a gas company could avoid providing any formal 

notice or environmental-impact statement to FERC before 

identifying the land on which it planned to build. 18 CFR 

§ 157.208(a)-(b), (d). Columbia at first projected that its 

costs would be below $11,000,000, so the notice and 

environmental-impact-statement requirements were made 

inapplicable here. The reporting requirement, meanwhile, is 

merely an annual “check-in” with FERC in which a gas 

company provides some information for each facility 

scheduled for completion that year. 18 C.F.R. § 157.208(e).14 

Therefore, other than the locational limitation now at issue, 

the cost cap was to be the lone constraint on Columbia’s 

construction plans.

But, in this case, FERC actually waived even the 

$11,000,000 cost cap, thus removing the last restraint on the 

 

14 That information includes a “description of the 

facilities,” a listing of the “specific purpose, location, and 

beginning and completion date of construction of the facilities 

installed,” the “actual installed cost,” and descriptions of 

consultations made regarding various environmental 

regulations. 18 C.F.R. § 157.208(e)(1)-(4). 
28

company’s exercise of eminent domain.

15

 With that

restriction removed, § 157.208 swallows § 2.55(b), for if a 

natural gas company seeks to move its pipeline outside the 

original right-of-way and thus outside of § 2.55(b)’s purview, 

there is really nothing to prevent it from doing so. 

The Majority proffers other “curbs” on replacement 

projects, in addition to its misplaced faith in its own 

perception of a gas company’s self-interest. (Maj. Op. at 11.) 

Those include a requirement that the “ʻprimary purpose’” of 

replacements be for sound engineering purposes – in other 

words, that “ʻthere must be a physical need to replace 

facilities’” and that gas companies may not circumvent 

pipeline requirements merely by designating a project as a 

“ʻreplacement.’” (Maj. Op. at 11-12 (quoting 18 C.F.R. 

§ 157.202(b)(2)(i); Revision of Existing Regulations Under 

the Natural Gas Act, 64 Fed. Reg. 54522, 54527 (Sept. 29, 

1999) (codified at 18 C.F.R. part 157)).) My colleagues also 

say that gas companies may not construct new delivery points 

or replace pipeline for the primary purpose of increasing main 

 

15 The fact that Columbia conveniently obtained the 

waiver in the middle of the proceedings below suggests that 

FERC did not engage in any substantial deliberation before 

issuing it. What is more, FERC’s proffered justification for 

the waiver was that the landowners pushed back in 

negotiations, which caused construction to be delayed. In 

essence, the cost limitation was waived for the precise reason 

it should not be: because property owners questioned the 

exercise of eminent domain. The waiver sets a troubling 

precedent that punishes property owners for attempting to 

rely on protections afforded them in an eminent domain 

process that the agency is supposed to oversee. 
29

line capacity. And they point out that, if a landowner has a 

problem with a gas company’s use of eminent domain, that 

person may file a complaint with FERC. But just as 

Columbia’s claimed limitations are insufficient, so are those 

proposed by the Majority. 

As for the primary-purpose requirement, because 

FERC does not review projects that are automatically

authorized, 18 C.F.R. § 157.208(a), as Columbia says is so in 

this instance, there is no independent way to determine what 

the primary purpose of the replacement is. As for delivery 

points, they have nothing to do with the present dispute – they 

are not pipelines. As for capacity, I assume my colleagues 

are referring to the provision of that regulation which 

excludes from the definition of “eligible facility” 

“[r]eplacements for the primary purpose of creating additional 

main line capacity.” 18 C.F.R. § 157.202(b)(2)(i). That 

regulation prohibits gas companies from undertaking a 

replacement for the primary purpose of increasing the gas 

capacity of the pipeline. Again, though, the regulation as 

interpreted by the Majority would permit a gas company to 

construct pipelines anywhere outside the original right-ofway and thus does not preserve constitutional protections for 

property owners. And, finally, as for the option landowners 

have of filing complaints with FERC, it is perverse to foist 

upon the citizenry the obligation of policing those whom the 

government, as agents of the citizenry, are already supposed 

to be policing. 

To repeat, because the cost cap – the only legitimate 

control on Columbia’s “automatic authorization” of its 

exercise of eminent domain – is waivable by FERC and thus 

proves to be an unreliable restraint, the Majority’s 
30

interpretation of Part 157 is constitutionally suspect in that it 

permits a delegation of power beyond that which can properly

be made to a private company. The District Court 

exaggerated only a little in saying that the interpretation 

proposed by Columbia and since adopted by the Majority 

means that a “certificate automatically authorizes relocation 

of replacement Line 1655 literally anywhere on earth, so long 

as the replacement ‘will not satisfy the location or work space 

requirements of § 2.55(b).’” (App. at 32.) That outcome is 

untenable.

The Majority’s ruling presents another constitutional

problem. In Bi-Metallic Investment Co. v. State Board of 

Equalization, 239 U.S. 441 (1915), the Supreme Court 

distinguished the concerns arising from agency actions that 

affect broad swaths of the population and those zeroing in on 

a handful of individuals, noting that the latter were more 

significant. It made clear that, when agency action affects 

“[a] relatively small number of persons,” those individuals are 

“exceptionally affected.” Id. at 446. Such action is 

adjudicative in nature, and property owners are entitled to 

procedural due process above and beyond that which has been 

provided by the legislature via the agency’s organic statute. 

Id. 

Consistent with that safeguard, Congress and FERC 

require significant oversight of any construction outside a 

FERC-issued certificate’s right-of-way. Specifically, the 

Natural Gas Act provides, “[n]o natural-gas company ... shall 

... undertake the construction or extension of any facilities 

therefor ... unless there is in force with respect to such 

natural-gas company a certificate of public convenience and 

necessity issued by the Commission authorizing such acts or 
31

operations.” 15 U.S.C. § 717f(c)(1)(A). Thus, the 

requirements for obtaining a new certificate apply “in every 

case where a natural gas company acquires additional 

property, even for operation and maintenance purposes.”16 

 

16 The Majority characterizes § 717f(c)(1)(A) as only 

being applicable to extensions of already-existing facilities. 

(Maj. Op. at 32 n.19.) But the statute is not so limited, as it 

applies to “any proposed construction or extension.” 15 

U.S.C. § 717f(c)(1)(A) (emphasis added). There is no dispute

that the project constitutes a “construction”; in fact, FERC in 

its Footnote Rule aptly described replacements outside the 

original right-of-way as “construction of ... main line 

facilities ... without restriction on their location.” Revisions 

to Auxiliary Installations, 78 Fed. Reg. at 72804 n.75. 

Columbia likewise refers to its replacement project as a 

construction, noting that “[i]f [it] is not able to begin 

construction on the properties by September 1, 2014, weather 

events could have a significant disruptive effect.” 

(Appellant’s Opening Br. at 8, 39.) 

In any event, the distinction between an “extension” 

and “proposed construction” is meaningless in this case

because the regulatory goal as to both is to place significant 

controls over a natural gas company acquiring additional 

property, no matter the reason. FERC has promulgated such 

controls for construction, expansion, or any other purpose 

requiring a FERC certificate, “to ensure that landowners will 

be informed of any proposed infringement of their property 

rights, and will have an opportunity to contest such proposed 

infringements, prior to condemnation proceedings.” 

Williston Basin Interstate Pipeline, Co. v. An Exclusive Gas 

Storage Leasehold, 524 F.3d 1090, 1097 (9th Cir. 2008) 

(emphasis added) (citing 18 C.F.R. §§ 157.6(d)(2)(iv), 
32

Williston Basin Interstate Pipeline Co. v. Exclusive Gas 

Storage Leasehold, 524 F.3d 1090, 1097 (9th Cir. 2008). A 

“key Congressional goal in enacting the NGA [was] to have 

FERC balance the competing public interests involved in a 

proposed project through the issuance of certificates of public 

convenience and necessity.” Id.; see 15 U.S.C. § 717f(e) 

(setting forth factors for FERC to consider in deciding 

whether to issue a FERC certificate). Notably, FERC has 

interpreted that provision to require detailed notice to affected 

landowners of their rights as to the proposed project and a 

formal hearing where they have an opportunity to intervene 

and protest it. 18 C.F.R. §§ 157.6(d)(2), 157.10. 

The Majority manages to turn those limiting 

regulations into a grant of limitless authority to natural gas 

companies for basically the same activity as long as that 

activity is labeled a “replacement.” The approach adopted 

today allows a gas company to bypass all notice-and-hearing 

requirements by tying its proposed project to the originally 

authorized pipeline, even if that authorization was provided 

decades ago and in an entirely different location. No 

consideration is given to the rights of newly affected parties. 

That is fundamentally at odds with regulations requiring

notice and an opportunity to participate in certificate hearings. 

It is also at odds with what the Supreme Court has said 

about the searching review FERC is supposed to undertake 

before issuing a certificate:

 

157.6(d)(3)(v), 157.10 (procedures for obtaining a FERC 

certificate)). 
33

[A] natural gas company must obtain from 

FERC a ‘certificate of public convenience and 

necessity’ before it constructs, extends, 

acquires, or operates any facility for the 

transportation or sale of natural gas in interstate 

commerce. FERC will grant the certificate only 

if it finds the company able and willing to 

undertake the project in compliance with the 

rules and regulations of the federal regulatory 

scheme. 

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 302 (1988)

(citation omitted). In short, the Supreme Court has read 

§ 717f(h) of the Natural Gas Act to require gas companies to 

apply for a new certificate prior to engaging in construction 

projects like the one here, as the companies are subject to 

FERC’s “statutory duty” to carefully review any new project 

that “constructs, extends, acquires, or operates any facility for 

the transportation” of natural gas.17 Id. 

FERC, once upon a time, interpreted its regulations to 

require notice and hearings to protect affected landowners’ 

 

17 In fact, Columbia concedes that it was free to 

petition FERC for another certificate of public convenience 

and necessity to authorize its current project, but it chose not 

to. Had it done so, much delay and expense would have been 

avoided here. But Columbia wants a precedent for the 

exercise of power. That is unfortunate because, if everything 

is as Columbia claims, the pipeline construction would be 

underway and perhaps completed, the Landowners’ rights 

would have been addressed, and safety issues, to the extent 

there are any, would have been resolved. 
34

interests and balance them with the public interest in a safe 

and properly functioning supply of natural gas.

18

 The 

Majority’s reading of the regulations, while very convenient 

for Columbia and perhaps the public at large, leaves those 

procedural, even constitutional, protections for property 

owners in tatters.

19

 

 

18 The Majority implies that I am standing in the way 

of safety measures. That is not my position. I am certainly 

not suggesting that pipes be left to rot in the ground. A gas 

company can maintain or replace its pipeline on or adjacent to 

its certificate’s designated right-of-way, but if it strays 

beyond that, the regulations and the Constitution bring 

procedural protections into play that require a utility to 

approach FERC for a new certificate. Notice and an 

opportunity to be heard are basic protections for the property 

rights of American citizens. 

19 The Majority also errs in reversing the District 

Court’s denial of Columbia’s request for a preliminary 

injunction and immediate possession of the easements. 

Because I believe Columbia lacked the authority to condemn 

the easements by the power of eminent domain, as discussed 

above, I would also conclude that Columbia does not have a 

right to immediate possession of the easements. But even 

assuming Columbia’s success in this case, the speculative 

nature of Columbia’s proffered evidence cuts against an 

injunction. The testimony of Doug Holley, a former 

employee and current easement-contract negotiator, is 

persuasive. At the preliminary-injunction hearing below, he 

conceded that he “do[es not] know as an individual [whether 

the line could fail soon] because [he] ha[s] not seen the line, 

[he] ha[s] done no testing on the line, [and he] can’t speak to 

whether there is an immediate danger. [He is just] assuming 
35

III. Conclusion

Because the Emergency Reconstruction Notice

provides an interpretation that is not plainly erroneous and 

that reflects a fair and considered judgment concerning limits 

on where a replacement pipeline may be located, we should 

give that interpretation deference. The District Court did not 

err in understanding that such a limitation is necessary, nor in 

determining that a significant departure from the pipeline’s 

original route exceeds that limit. Thus, applying basic

administrative-law principles leads to the conclusion that we 

should be affirming the ruling of the District Court. Speaking 

more generally, it is disturbing and discouraging that, by 

today’s ruling, the Majority endorses a view of delegated 

sovereign power so broad that a private gas company, with no 

agency oversight or other significant procedural restraint, can 

take the property of other citizens far removed from that 

company’s original right-of-way. I therefore respectfully 

dissent.

 

there is because [his] company has put into place this 

prioritization system [to determine which line to replace 

next].” (Preliminary Injunction H’g Trans. at 53:19-24.) 

Columbia proffers no evidence indicating that a threat is 

imminent. Therefore, based only on the information before 

us, a preliminary injunction is not the proper remedy here.