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Dominion Carolina Gas Transmission, LLC v. 1.169 Acres

United States District Court, D. South Carolina, Columbia Division

October 28, 2016

Dominion Carolina Gas Transmission, LLC, Plaintiff,
v.
1.169 Acres, in Richland County, South Carolina located on Parcel R39100-02-05; ETTA N. MANN, JOHN L. RICHARDSON, SR., HERMAN DARRELL RICHARDSON, ARTHUR C. RICHARDSON, ROBERT RICHARDSON, ETHEL R. BOLDEN, LESTER E. RICHARDSON, LUCIEN V.P. RICHARDSON, JOHNELLA RICHARDSON, DEBORAH JEANNE RICHARDSON DAVIS ALEXANDER, RUBYE LUCILLE RICHARDSON ALEXANDER, JACQUELINE LEANNA RICHARDSON WILLIAMS, DWAYNE MAURICE RICHARDSON, WALTER BUTLER, JR., KAREN PERRY TOWNSEND, JANET FARRELL, GARY WHITE, CHRISTOPHER WHITE, BERTHA RICHARDSON, CHARLES ROGERS RICHARDSON, ELIZABETH H. SIMON, AND JUDY H. GULLAX, SOUTH CAROLINA DEPARTMENT OF REVENUE, RMC FINANCIAL SERVICES, PIONEER CREDIT CO, PALMETTO HEALTH ALLIANCE DBA PALMETTO RICHLAND MEMORIAL, SOUTH CAROLINA FEDERAL CREDIT UNION, And UNKNOWN OWNERS, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR IMMEDIATE POSSESSION

         Plaintiff Dominion Carolina Gas Transmission, LLC (“DCGT”) has moved for immediate possession of the easements sought in the Complaint in this matter. After considering the motion, the memorandum in support, and the attached affidavits of Michael Ferguson and Metrick Houser (“Ferguson Affidavit” and “Houser Affidavit”), the Court grants DCGT's request pursuant to E. Tennessee Nat. Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004) and its progeny as set forth below.

         FACTUAL BACKGROUND

         DCGT is an interstate natural gas company as defined by the Natural Gas Act (“NGA”). 15 U.S.C. § 717a(6); see also Ferguson Affidavit at ¶ 8. As such, DCGT is subject to the jurisdiction of the Federal Energy Regulatory Commission (“FERC”) and is qualified to, among other things, construct and operate interstate natural gas transmission pipelines. 15 U.S.C. § 717, et seq.; Ferguson Affidavit at ¶ 8.

         This case arises from DCGT's exercise of its eminent domain powers pursuant to the NGA, 15 U.S.C. § 717, et seq., and the applicable FERC Certificate order, which is attached to the Ferguson Affidavit as Exhibit A. DCGT brought this action seeking certain easements it requires in connection with its Eastover pipeline project (“Project”). DCGT has been unable to reach an agreement as to the defendant parcels and landowners in this action, each of which is listed below (collectively, “Landowners”).

         The Landowners own or hold interests in real property located in Richland County, South Carolina described as the Estate of Janie Sims, TMS # R39100-02-05 (the “Property”). Ferguson Affidavit at ¶¶ 4-7. DCGT seeks easements over the Property in connection with the Project as shown in Exhibit M to the Complaint. Id. at ¶ 10.

         The FERC Certificate order authorizes DCGT to construct and operate the Project, an approximately 28-mile long pipeline and appurtenant facilities serving an industrial customer in South Carolina. Id. at Ex. A. That construction process necessarily requires access to all 126 involved parcels, including those belonging to the defendant landowners. Id. at ¶ 10. “DCGT's construction plan called for it to complete all construction by September 1, 2016, to meets its customer's in-service date.” Id. at ¶ 11. That deadline has been extended, and DCGT now contemplates a construction completion date of November 1, 2016. Id. The deadline was chosen to make sure that DCGT can meet its customer's in-service deadline, which was set to reduce emissions and comply with federal environmental deadlines. Id. at ¶ 12. “In order to comply with its current construction schedule, DCGT must have immediate possession of the properties at issue so it can commence construction and meet its deadline.” Id. at ¶ 11.

         STANDARD OF REVIEW

         The Fourth Circuit has held that a court may use its equitable powers to grant a preliminary injunction awarding immediate possession to a natural gas company if the court determines that the company has the right to condemn the property. Sage, 361 F.3d 808 (4th Cir. 2004). “[O]nce a district court determines that a gas company has the substantive right to condemn property under the NGA, the court may exercise equitable power to grant the remedy of immediate possession through the issuance of a preliminary injunction.” Id. at 828. “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, 2016 WL 1248670, at *12 (D. Md. Mar. 25, 2016) (applying test for preliminary injunction in case seeking immediate possession under the NGA). “The Fourth Circuit no longer recognizes a ‘flexible interplay' among these criteria. Instead, each requirement must be fulfilled as articulated.” Occupy Columbia v. Haley, 866 F.Supp.2d 545, 552 (D.S.C. 2011).

         DISCUSSION

         I. Likelihood of Success on the Merits

         This Court has granted partial summary judgment to DCGT with respect to its right to condemn the requested easements. Thus, DCGT has already succeeded on the merits of this issue.

         II. Irreparable Harm

         With respect to irreparable harm, the Ferguson Affidavit establishes the following:

10. DCGT has received a FERC Certificate order authorizing it to construct and operate the approximately 28 mile pipeline and appurtenant facilities in order to serve an industrial customer in South Carolina. That construction process necessarily requires access to all 126 involved parcels, including those belonging to the defendant landowners. The specific easements sought with respect to the ...

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