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December 10, 2016
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Federal court sides with environmental groups; FERC did not properly conduct environmental review

The Tennessee Gas Pipeline Company works on the preparation for the Northeast Upgrade Project in August 2011.

WASHINGTON, D.C. — In a victory for environmental groups, a federal court ruled on June 6 that a federal agency ran afoul of the National Environmental Policy Act (NEPA) in granting certificates for the upgrade of pipeline projects in Northeast Pennsylvania and Northern New Jersey.

According to Jeff Tittel, director of the New Jersey Sierra Club, one of three environmental groups that brought the lawsuit, the decision means that the Federal Energy Regulatory Commission (FERC) will have to do further analysis of the project, most of which is already complete and operational, and the Tennessee Gas Pipeline Company (TGP) may have to undertake additional mitigation measures.

Specifically, the United States Court of Appeals for the District of Columbia ruled that FERC allowed for the "segmentation" of the review of the project. The court wrote, "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 Environmental Assessment 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.”

The three-judge panel was unanimous in the ruling.

Kinder Morgan, Inc. the parent company of TGP, responded with a statement that said, “We are reviewing the opinion and generally do not comment on pending litigation. However, whether the completed expansion projects are considered individually, as FERC did, or cumulatively, we do not expect any change in the ultimate conclusion that there was no significant environmental impact resulting from the projects.”

The environmental organizations were nevertheless pleased with the ruling.

Maya van Rossum, the Delaware Riverkeeper said, “This is important vindication of the rights of our communities and environment to be honestly considered and protected by our federal agencies. 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.”

The case was argued before the Court of Appeals by Delaware Riverkeeper Network attorney Aaron Stemplewicz, who said, “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.”

Tittel said, “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.”

The third group that was part of the lawsuit was the New Jersey Highlands Coalition.