Nuns lose federal appeal to stop Lancaster pipeline on their farm

Sisters Bernice Klostermann and George Ann Biscan, both Roman Catholic nuns, in front of an arbor, that some call a prayer chapel, erected in a clearing on the order’s Lancaster County farm in an attempt to protest the planned Atlantic Sunrise pipeline that would run through the field.

An order of Roman Catholic nuns has lost an appeal over a religious freedom suit against a natural gas pipeline run beneath the order’s Lancaster County cornfield.

A panel of the U.S. Court of Appeals for the Third District agreed Wednesday with a lower court that the Adorers of the Blood of Christ had failed to make their religious objections known during the federal process that approved construction of the Atlantic Sunrise Pipeline. In other words: It’s too late now.

Some of the nuns appeared with 75 supporters during a January hearing before the appeals court in Philadelphia. The nuns described the pipeline as a violation of their religious beliefs, which are heavily influenced by environmental concerns, including treating land as sacred and reducing fossil fuel use.

The appeals panel, however, had to decide if the district court even had jurisdiction to consider the merits of a religious freedom case.  The lower court said it did not.

In the end, the courts agreed that the nuns should have made religious objections during the process of awarding Transco the right to build the pipeline in 2017.  The pipeline runs from the Marcellus Shale across Pennsylvania and into Maryland.

The Federal Energy Regulatory Commission (FERC) approved the pipeline and gave Transco the right to use eminent domain to take private property after compensation.

But the appeals court noted in its ruling that the nuns made no religious objection during the FERC process. Separately, the nuns had filed a suit to stop the condemnation of their land, but they did not cite religious reasons then.  They lost the condemnation case.

The nuns then filed a civil suit under the Religious Freedom Restoration Act (RFRA).

But Transco, which had already been given federal approval, began burying a 42-inch pipeline under their West Hempfield cornfield.

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Construction had already been completed when their attorney J. Dwight Yoder appeared in court in Philadelphia in January, arguing that the religious freedom act was written by Congress and makes no mention of when or where a religious freedom suit had to be filed. The nuns’ religious freedoms were not impacted until the pipeline was being built and buried, he said.  The Adorers were an “innocent” third party and not part of the FERC application process, he told the appeals panel.

“We disagree,” the panel said in its ruling, issued Wednesday.  The appeals court said procedures of the Natural Gas Act were clear on how aggrieved parties should proceed.

“If the Adorers had participated in the administrative process, FERC may have denied or modified the conditions of Transco’s certificate,” the appeals court concluded. “Or, if FERC failed to do so, the reviewing court of appeals may have ruled in the Adorers’ favor. Under these circumstances, the Adorers would have, at the very least, had the opportunity to seek the relief they so desire today.”

Yoder maintained Wednesday that the court had erred.

“In adopting the RFRA, Congress made it clear that the free exercise of religion is an unalienable right that cannot be substantially burdened by the federal government without compelling justification,” Yoder said by email.

“In my opinion and with all due respect to the Court, the decision today by a panel of the Third Circuit that elevates the provisions of the Natural Gas Act over the protection of religious freedoms is inconsistent with both the express purpose of RFRA and with its statutory mandate,” he said.

Christopher Stockton, a representative of Transco, said in an email: “Clearly, we believe the court made the correct decision. Throughout the pre-construction and construction process, our goal has been to respect and treat every landowner fairly. While we respect the Adorers’ position, we disagree with their opinion with regard to this important infrastructure project. “