NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 21-2567
_______________
TRANSOURCE PENNSYLVANIA, LLC
v.
GLADYS BROWN DUTRIEUILLE, Chairman, Pennsylvania Public Utility
Commission; DAVID W. SWEET, Vice Chairman, Pennsylvania Public Utility
Commission; JOHN F. COLEMAN, Commissioner, Pennsylvania Public Utility
Commission, in his official capacity; RALPH V. YANORA, Commissioner,
Pennsylvania Public Utility Commission, in his official capacity;
PENNSYLVANIA PUBLIC UTILITY COMMISSION
The County of Franklin*,
Appellant
* Added pursuant to F.R.A.P. 12(a)
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-21-cv-01101)
District Judge: Honorable Jennifer P. Wilson
_______________
Submitted Under Third Circuit L.A.R. 34.1(a):
May 6, 2022
_______________
Before: CHAGARES, Chief Judge GREENAWAY, JR. and PORTER,
Circuit Judges.
(Filed: June 22, 2022)
______________
OPINION
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PORTER, Circuit Judge.
Intervention protects nonparties from the adverse effects of litigation and fosters
judicial economy by preventing a multiplicity of suits. But a nonparty’s indirect and
remote interests do not allow it to commandeer an existing action. Franklin County
moved to intervene in this action under Federal Rule of Civil Procedure 24, asserting that
the outcome of the suit would cause detrimental economic and environmental harm to
Franklin County by authorizing Transource Pennsylvania, LLC (“Transource”) to
condemn Franklin County’s agricultural security areas and conservation easements. The
District Court denied intervention. The District Court did not abuse its discretion, so we
will affirm.
I
The Commonwealth of Pennsylvania participates in an interstate regional electric
grid connecting thirteen states and the District of Columbia. PJM Interconnection, LLC
(“PJM”), a federally regulated regional transmission organization, operates and plans that
interstate grid. See 16 U.S.C. § 791a, et seq. Because PJM determined that the existing
electric transmission framework was “congested,” PJM solicited proposals to alleviate
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
2
the congestion.1 Transource, through its parent company, submitted a proposal to
construct the Independence Energy Connection Project (“IEC Project), consisting of two
new transmission lines spanning the Pennsylvania-Maryland border. Transource entered a
“Designated Entity Agreement” with PJM to construct the IEC Project in Pennsylvania.
Although federal law vests authority over interstate electrical grid planning in the
federal government, states retain authority over siting and construction. See S.C. Pub.
Serv. Auth. v. FERC, 762 F.3d 41, 76 (D.C. Cir. 2014) (“States retain control over the
siting and approval of transmission facilities.”). In Pennsylvania, a public utility must
obtain a certificate of public convenience from the Pennsylvania Public Utility
Commission (“PAPUC”) before offering service. 66 Pa. Cons. Stat. § 1101. Transource
obtained a provisional certificate of public convenience, which would allow it to conduct
studies, surveys, and appraisals relating to siting and other pre-condemnation actions. But
in order to make “extensions” or “improvements” to transmission facilities, a public
utility must establish that the improvements are “necessary or proper for the
accommodation, convenience, and safety of its patrons, employees, and the public.” 66
Pa. Cons. Stat. § 1501. Specifically, the public utility must establish:
(1) That there is a need for [the transmission line].
(2) That it will not create an unreasonable risk of danger to the health and
safety of the public.
1
See U.S. Dep’t of Energy, Office of Electricity, National Electric Transmission
Congestion Study 5 (Sept. 2020),
https://www.energy.gov/sites/default/files/2020/10/f79/2020%20Congestion%20Study%
20FINAL%2022Sept2020.pdf (“Transmission congestion refers to the economic impacts
on the users of electricity that result from operation of the system within” the “physical
limits on the amount of electricity flow the system is allowed to carry.”).
3
(3) That it is in compliance with applicable statutes and regulations providing
for the protection of the natural resources of this Commonwealth.
(4) That it will have minimum adverse environmental impact, considering
the electric power needs of the public, the state of available technology
and the available alternatives.
52 Pa. Code § 57.76(a). Only after the PAPUC makes all four findings can a public utility
receive siting approval. On December 22, 2020, an administrative law judge
recommended “that the Commission deny Transource’s Siting Applications . . . because
Transource has failed to show need for the project within the meaning of [PAPUC]
Regulations and the Pennsylvania Public Utility Code.” App. 94–95. The PAPUC agreed
that Transource had failed to establish a “need” for the IEC Project and rescinded
Transource’s certificate of public convenience. Transource filed a complaint in the
District Court, alleging that the PAPUC’s decision violated the dormant Commerce
Clause and was preempted by PJM’s earlier determination of need.
Franklin County moved to intervene as of right under Rule 24(a) and permissively
under Rule 24(b). Franklin County expressed concern that the outcome of this suit could
reverse the PAPUC’s “need” determination, which would result in Transource being
“much closer to having condemnation powers.” Appellant Br. 20. The District Court
denied intervention.
4
II2
We review the District Court’s denial of intervention as of right for abuse of
discretion. Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir. 1987). Federal Rule of Civil
Procedure 24(a)(2) requires a district court to grant intervention as of right if “(1) the
application for intervention is timely; (2) the applicant has a sufficient interest in the
litigation; (3) the interest may be affected or impaired, as a practical matter by the
disposition of the action; and (4) the interest is not adequately represented by an existing
party in the litigation.” United States v. Territory of Virgin Islands, 748 F.3d 514, 519 (3d
Cir. 2014) (quoting Harris, 820 F.2d at 596). Although Franklin County’s motion was
timely, the District Court determined that Franklin County failed to establish a sufficient
interest in the litigation and did not address the remaining elements. See Mountain Top
Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995)
(requiring each element to be met for intervention). We find no error, much less an abuse
of discretion, in the District Court’s sound reasoning.
A “sufficient interest in the litigation” is one “that is specific to [the intervenor], is
capable of definition, and will be directly affected in a substantially concrete fashion by
the relief sought.” Kleissler v. United States Forest Serv., 157 F.3d 964, 972 (3d Cir.
1998). “[T]he polestar for evaluating a claim for intervention is always whether the
proposed intervenor’s interest is direct or remote.” Id. Franklin County’s conservation
2
The District Court had jurisdiction under 28 U.S.C. § 1331. Franklin County timely
appealed, and we have jurisdiction under 28 U.S.C. § 1291. See United States v. Alcan
Aluminum, Inc., 25 F.3d 1174, 1179 (3d Cir. 1993).
5
easements and agricultural security areas may be condemned if the IEC Project is
permitted to continue. If Transource prevails in this action, it would have its provisional
certificate of public convenience restored.3 But before Transource may condemn Franklin
County lands, the PAPUC must still consider the additional section 57.76(a) factors. 15
Pa. Cons. Stat. § 1511(c). Although Franklin County asserts that the “need”
determination “would heavily influence the Commission’s determination of approval,” it
is unclear how any of the remaining three section 57.76(a) elements are contingent on a
need determination. Appellant Br. 19. It is entirely possible for the PAPUC to determine
that despite the need for additional transmission lines, the IEC project creates an
unreasonable risk of danger, is not in compliance with applicable statutes providing for
the protection of natural resources, or has more than a minimal adverse environmental
effect.
3
Franklin County asserts that the certificate would no longer be provisional because the
PAPUC would be compelled to determine that the IEC Project is necessary. But that is a
misreading of the PAPUC’s opinion. The PAPUC’s revocation of the provisional
certificate was based on a recognition that “need” is necessary but not sufficient for the
IEC Project. App. 147–49 (revoking provisional certificate). While a finding of “no
need” would preclude a full certificate of public convenience, a finding of “need” would
not require it.
6
A declaratory judgment in favor of Transource would only “influence”—not
dictate—the PAPUC’s ultimate determination on remand.4 And an interest that is
contingent on the result of a separate proceeding is not a sufficient interest for
intervention as of right. Lib. Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 224–26 (3d
Cir. 2005) (quoting Lib. Mut. Ins. Co. v. Pacific Indem. Co., 76 F.R.D. 656, 658 (W.D.
Pa. 1977)) (“[A]n interest contingent upon a favorable result in an associated lawsuit is
not an interest sufficient to require intervention under Rule 24(a).”). Because Franklin
County’s asserted interest is too remote to support intervention, we do not reach the other
elements of Rule 24. The District Court did not abuse its discretion in denying the motion
to intervene as of right.
III
We review the District Court’s denial of permissive intervention for abuse of
discretion. Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1124 (3d Cir. 1992).
Permissive intervention is available upon timely application when an applicant “has a
claim or defense that shares with the main action a common question of law or fact.” Fed.
R. Civ. P. 24(b). District courts are afforded broad discretion, and denials of motions for
4
Franklin County also argues that the restoration of Transource’s provisional certificate
of public convenience would permit Transource to continue project assessment and
conduct appraisals on Franklin County land. But Franklin County does not explain how
the mere surveying of its lands is sufficient to justify intervention as of right. And
because Franklin County raises this argument for this first time on appeal, the District
Court did not abuse its discretion in failing to consider whether Franklin County’s
unstated pre-condemnation interests are sufficient to satisfy Rule 24.
7
permissive intervention have “virtually never been reversed.” Lib. Mut. Ins. Co., 419 F.3d
at 227 (quoting Catanzano By Catanzano v. Wing, 103 F.3d 223, 234 (2d Cir. 1996)).
Franklin County argues that it has “specialized and particularized knowledge [that]
will serve to clarify the issues in this case.” Appellant Br. 28. But Franklin County fails
to specify what that specialized knowledge is and how that knowledge is relevant to the
narrow issues before the District Court. This suit is based on federal preemption and
dormant Commerce Clause challenges. And whether PAPUC’s need determination is
preempted by PJM’s prior determination or proscribed by the dormant Commerce Clause
shares no common questions of law or fact with the IEC’s Project’s potential harm to
Franklin County. Simply put, the District Court did not abuse its discretion in
determining that Franklin County’s land-use and environmental objections “will not add
anything to the litigation.” App. 11 (internal citation and quotation marks omitted).
Additionally, the District Court denied permissive intervention because Franklin
County failed to abide by Federal Rule of Civil Procedure 24(c), which requires that an
application for intervention “state the grounds for intervention and be accompanied by a
pleading that sets out the claim or defense for which intervention is sought.” Franklin
County nonetheless argues that the District Court abused its discretion in denying on this
ground because “[s]uch pleading was unnecessary” and the District Court had determined
earlier that no prejudice resulted from Franklin County’s intervention. Appellant Br. 30;
see also Fed. R. Civ. P. 24(b)(3) (delay or prejudice must be considered for permissive
intervention). While some courts have exercised leniency in the application of Rule 24(c)
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despite its mandatory language, it is not an abuse of discretion for the District Court to
enforce the rules merely because an intervention-applicant claims that it is unnecessary.
* * *
The District Court did not abuse its discretion in denying Franklin County’s
intervention, so we will affirm.
9