The United States Court of Appeals for the District of Columbia Friday ruled federal agencies must consider the full impact of segmented pipeline projects in their environmental review under the National Environmental Policy Act.

The ruling resulted from a lawsuit brought by 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 ordered additional analysis and review.

The Court stated: “On the record before us, we hold that in conducting its environmental review of the Northeast Project without considering the other connected, closely related, and interdependent projects on the Eastern Leg, FERC impermissibly segmented the environmental review in violation of NEPA. 

“We also find that FERC’s EA is deficient in its failure to include any meaningful analysis of the cumulative impacts of the upgrade projects.  We therefore grant the petition for review and remand the case to the Commission for further consideration of segmentation and cumulative impacts.”

“On the record before us, we find that FERC acted arbitrarily in deciding to evaluate the environmental effects of the Northeast Project independent of the other connected action on the Eastern Leg.”

In May 2012 the Federal Energy Regulatory Commission issued a certificate of public convenience and necessity to Tennessee Gas Pipeline Company authorizing construction and operation of its Northeast Upgrade Project. 

Delaware Riverkeeper Network, the NJ Sierra Club and New Jersey Highlands Coalition argued that the approval was inappropriate because FERC had illegally segmented its environmental review of the Northeast Project by failing to consider three other connected and interdependent projects – the 300 Line Project, the Northeast Supply Diversification Project, the MPP Project – and by failing to provide a meaningful analysis of the cumulative impacts of the projects.

“This is important vindication of the rights of our communities and environment to be honestly considered and protected by our federal agencies,” said Maya van Rossum, the Delaware Riverkeeper.  “FERC has been allowing illegal segmentation by pipeline companies for years, it has ignored the pleas of the public for equity and for honest review of impacts, and as such FERC has been complicit with the pipeline companies in their ongoing efforts to avoid the rule of law and to ignore the devastating impacts they are having on our environment, impacts that will harm not just present, but also future generations.  It is rewarding that a federal court has finally held FERC to account.”

“This decision is important and powerful for every pipeline, related infrastructure and LNG project to come, but sadly for the communities, forests, streams, wetlands and critters impacted by the four projects at issue here, the decision comes too late to ensure their full consideration and protection,” said van Rossum.  “We will be able to press for important mitigation and efforts to undo the harms already inflicted, but as for avoiding the full array of harms, that is now impossible.  FERC needed to do its job when it had the opportunity – but they were too busy servicing the gas pipeline companies to care.”

“The D.C. Circuit’s decision today should put other pipeline companies on notice that the practice of segmenting pipeline projects before the Federal Energy Regulatory Commission will no longer be tolerated, and that the cumulative environmental impacts resulting from these projects must be fully considered before a project is approved,” said Aaron Stemplewicz, Delaware Riverkeeper Network attorney.

“This is a victory for clean water and environmental regulation over a fossil fuel pipeline. This is the first time the Court sided with the environment over a gas company, but more importantly it sends a clear message to FERC that they cannot ignore the environment. We see this as a critically important precedent that will now require FERC to look at the real environmental issues of the projects they review,” said Jeff Tittel, Director, New Jersey Sierra Club.

Of particular note – all three justices ruling on this case concurred on the final judgment rendered.

Tennessee Gas Pipeline Company’s Northeast Upgrade Project (NEUP) is an interstate transmission line upgrade project. The project included pipeline drilling activities under the Susquehanna and Delaware Rivers, significant new grading and clearing of previously undisturbed forested land and steep slopes, 90 stream crossings, 136 wetland crossings, and 450 acres of land development within the Delaware River watershed alone.  Highpoint State Park and Delaware State Forest are among the public lands that have been damaged by the project.

A copy of the ruling is available online.

NewsClips:

Court Rules Feds Must Consider Cumulative Impacts Of Pipelines

Another Pipeline Planned In Susquehanna County

Washington County Gas Line Proposal Criticized

Lebanon Group Offers Talking Points Opposing Pipeline

Williams Presents Plans For Lebanon County Pipeline

6/9/2014