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Federal Court Finds FERC’s Environmental Review of Gas Pipeline Fails to Comply with Requirements of Federal Law


Pipeline clearing in PA, credit: Max Phillips Via Flickr
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Kathryn Rumbles, Riverkeeper Legal Intern

On June 6, 2014, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Federal Energy Regulatory Commission’s (FERC) environmental review of Tennessee Gas Pipeline’s reconstruction project was impermissibly segmented and failed to adequately address the cumulative impacts of the project. The Court concluded that FERC thus violated federal law requirements governing environmental review.

Pipeline clearing in PA, credit: Max Phillips Via Flickr

Pipeline clearing in PA, credit: Max Phillips Via Flickr

Beginning in 2010, Tennessee Gas Pipeline sought approval to construct a 30-inch natural gas pipeline alongside an existing 24-inch pipeline across Pennsylvania and New Jersey. Tennessee Gas Pipeline submitted four separate project proposals, each of which covered a portion of the 200-mile construction. Rather than considering the overall impact of 200 miles of pipeline reconstruction, FERC considered the environmental impacts and cumulative affects of each section independently, and subsequently approved all four proposals.

Delaware Riverkeeper Network, New Jersey Sierra Club, and New Jersey Highlands Coalition challenged FERC’s action, and the Court ruled in favor of the environmental groups. A unanimous court held that FERC illegally segmented its environmental review of the four interconnected projects: “Given the self-evident interrelatedness of the projects as well as their temporal overlap, the Commission was obliged to consider the other three Tennessee Gas pipeline projects when it concluded its NEPA review of the Northeast Project.”

The court also held that FERC failed to consider the cumulative environmental impacts of the projects. The court therefore ruled that FERC failed to meet the standards established in the National Environmental Policy Act (NEPA) by approving the four project proposals separately, and ordered further review of both the segmentation and cumulative impacts by FERC.

The cumulative impacts issue addressed by the court parallel legal concerns that Riverkeeper and other organizations, represented by Earthjustice, identified with FERC’s review of the Constitution Pipeline Project, given the Constitution Pipeline Project also has the potential for significant cumulative impacts that have not been fully considered by FERC. While the Draft Environmental Impact Statement included a section on cumulative impacts, it failed to substantively identify cumulative impacts to groundwater, wetlands, wildlife, or water streams. Instead, FERC insisted any effects on wetlands and groundwater would only be “temporary and minor” without providing data to support those claims.

Unfortunately, the construction authorized by the 2012 FERC decision that the court has now overturned has already moved forward, including 90 stream crossings, 136 wetland crossings, and 450 acres of land development within the Delaware River watershed alone. Similarly, if permitted, the proposed Constitution Pipeline would cross at least 207 bodies of water and 75 acres of wetlands in New York alone, threatening both wildlife and access to safe drinking water. Riverkeeper hopes that this Court’s decision will send a clear message to FERC that it must engage in a comprehensive cumulative impact review before it can move forward with any decision on the Constitution Pipeline.

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