Litigation strategies, actions and successes are key and growing components of battling FERC and the pipelines. We share here key litigation successes and ongoing legal actions you should be aware of.
Hollerans v. Constitution Pipeline – brief laying out case that property rights should be restored
City of Green v. Ohio Environmental Protection Agency, et al., 6th Circuit, Docket No. 17-4016 ) (Nov. 22, 2017)
The City of Green challenged a Clean Water Act Section 401 Water Quality Certification issued by the Ohio Environmental Protection Agency (OEPA) for the NEXUS pipeline. The 6th Circuit Court of Appeals issued an Emergency Stay of Construction because “various important and required procedures were ignored” by OEPA which included problems with OEPA’s methodology for evaluating impacted wetlands.
Constitution Pipeline Co. v. New York State Department of Environmental Conservation, No. 16-1568.
On August 18, 2017, the U.S. Court of Appeals for the 2nd Circuit upheld NYSDEC’s denial of the Clean Water Act 401 Certification to Constituition Pipeline. The pipeline, which was slated to run through Pennslyvania and New York state, failed to meet NYSDEC’s environmental regulations protecting streams, rivers, and critical watersheds. The appeal by Constitution was met by a unanimous decision in favor of NYSDEC, stating that NYSDEC was well within its jurisdiction and that its review was not capricious or arbitrary.
Decision
Delaware Riverkeeper Network, et. al. v. FERC (For TGP NEUP Pipeline)
In a decision issued June 6, 2014, the US Court of Appeals for the District of Columbia, ruled that the Delaware Riverkeeper Network, the NJ Sierra Club and New Jersey Highlands Coalition were correct in their legal challenge to the Tennessee Gas Pipeline Company’s Northeast Upgrade Project and that the FERC approval granted was inappropriate because FERC had illegally segmented its environmental review of the project and had failed to provide a meaningful analysis of the cumulative impacts of the projects.
Decision
Minisink Residents v. FERC & Millennium (For Minisink Compressor)
In this decision issued August 15, 2015, the US Court of Appeals for the District of Columbia, provided additional guidance on the issue of segmentation.
Decision
Delaware Riverkeeper Network, et. al. v. FERC (For PennEast Pipeline)
The Delaware Riverkeeper Network filed a lawsuit March 2 against the Federal Energy Regulatory Commission (FERC). Filed with the United States District Court for the District of Columbia, the suit holds that FERC’s review and approval process for jurisdictional pipeline projects is infected by structural bias, violating Due Process rights in violation of the Fifth Amendment of the U.S. Constitution.
Complaint
Delaware Riverkeeper Network, et. al. v. FERC (For Leidy Southeast Pipeline)
The Delaware Riverkeeper Network filed a lawsuit with the US District Court for the District of Columbia on March 8, 2016 challenging FERC approval of the Leidy Southeast Expansion Project pipeline. The suit alleges that FERC violated the National Environmental Policy Act by engaging in illegal ‘segmentation’ in its decision-making process, and by issuing its approval of the pipeline before the State of Pennsylvania had given Clean Water Act approval for the project.
Petition for Review filed with the Court
Rehearing Request filed with, and denied by, FERC
Petitioner’s Merits Brief
Petitioner’s Reply Brief
Delaware Riverkeeper Network, et al. v. Pennsylvania Department of Environmental Protection
On May 5, 2015 the Delaware Riverkeeper Network (DRN) filed a lawsuit in the Third Circuit Court of Appeals challenging the Pennsylvania Department of Environmental Protection’s (Department) issuance of a Clean Water Act Section 401 Water Quality Certification for Transcontinental’s Leidy Southeast Expansion Project. DRN asserts that the Department violated the Clean Water Act and the Pennsylvania Code by issuing the Section 401 Water Quality Certification prior to completing its review of the information contained in the Chapter 105 Water Obstruction and Encroachment permit. The case was argued in October of 2015, and is pending before the Third Circuit.
Delaware Riverkeeper Network, et al. v. Pennsylvania Department of Environmental Protection
On May 5, 2016 the Delaware Riverkeeper Network (DRN) filed a lawsuit in the Third Circuit Court of Appeals challenging the Pennsylvania Department of Environmental Protection’s (Department) issuance of a Clean Water Act Section 401 Water Quality Certification for Transcontinental’s Atlantic Sunrise Project. Similar to DRN’s lawsuit regarding the Leidy Southeast Expansion Project, DRN again asserts that the Department violated the Clean Water Act and the Pennsylvania Code by issuing the Section 401 Water Quality Certification prior to completing its review of the information contained in the Chapter 105 Water Obstruction and Encroachment permit. The case will be briefed in the summer of 2016, and is pending before the Third Circuit.
Gunpowder Riverkeeper v. Federal Energy Regulatory Commission
The Gunpowder Riverkeeper filed a lawsuit against the Federal Energy Regulatory Commission (Commission) alleging that the Commission unlawfully issued a Certificate of Public Convenience and Necessity prior the state of Maryland issuing its Clean Water Act Section 401 Water Quality Certificate, and therefore the Commission violated the Clean Water Act. While Gunpowder Riverkeeper did properly allege standing, the Court found that the harms that Gunpowder Riverkeeper asserted (i.e. condemnation actions against Gunpowder Riverkeeper members) were not within the zone of interests of the Clean Water Act, and therefore the Court found that they lacked jurisdiction to get to the merits of the case.
Tennessee Gas Pipeline Company v. Delaware Riverkeeper Network et al.
Tennessee Gas Pipeline Company (Tennessee), filed a lawsuit against the Delaware Riverkeeper Network and the Pennsylvania Department of Environmental Protection (Department) alleging that the Delaware Riverkeeper Network’s appeal of a Pennsylvania Department of Environmental Protection permit at the Environmental Hearing Board was preempted by the Natural Gas Act, and that Tennessee did not need to apply for the permit. Ultimately, the court found that Tennessee needed to apply for the state Chapter 105 permit because that permit was so closely tied to the Clean Water Act Section 401 Water Quality Certification, but the Court did find that the Environmental Hearing Board was not the proper venue for such an appeal and that any appeal must occur in the appropriate federal Circuit Court of Appeal.
Clean Air Council, et. al. v. Sunoco
This case is for a natural gas liquids pipeline crossing the state of Pennsylvania. Clean Air Council and impacted landowners brought suit seeking a judicial ruling that Sunoco Pipeline has no right to claim the ability to take landowners’ property with eminent domain for the illegal Mariner East interstate export project.
Complaint
Brief
Order and Opinion Overruling Preliminary Objections
Comment of Delaware Riverkeeper Network Pursuant to Sunocos Mariner East Project
Sandisfield Taxpayers Opposing the Pipeline (STOP) Notice of Intent to Sue FERC
Group filed a notice of intent to sue pursuant to the Clean Water Act for FERC’s issuance of a Certification for the Connecticut Expansion Project prior to the issuance of a 401 water quality certification. This is the first such case attacking certification based directly on the CWA.
Notice of Intent to Sue Filed
Sierra Club v. FERC
On Petition for Review of Orders of the Federal Energy Regulatory Commission
Judge Allows DRN to Intervene in Lawsuit to Protect DRBC Drilling Moratorium
PR DRN Granted intervention WLMG DRBC.pdf
Clean water Act Approval Given by Pennsylvania Challenged in Court
Read more here
Spring Natural Gas Pipeline Policy Outlook
Read the report here