Federal judges appeared skeptical yesterday about an environmental group’s claim that energy regulators improperly approved a pipeline project in Pennsylvania.
In oral arguments before the U.S. Court of Appeals for the District of Columbia Circuit, the Delaware Riverkeeper Network argued that the Federal Energy Regulatory Commission unreasonably relied on an environmental assessment for a natural gas pipeline proposal despite conflicting information brought to light during a state permitting process.
At issue is the Leidy Southeast Expansion Project, a now-complete proposal from Transcontinental Gas Pipe Line Co. LLC, or Transco. The project is one of many along the East Coast that environmentalists have challenged in recent years, arguing that regulators are approving a slew of new oil and gas infrastructure without adequately weighing the impacts.
FERC issued an environmental assessment in 2014 concluding that the Leidy project would have no significant impact. The agency then granted a conditional certificate for the project, subject to the approval of state permits. While Pennsylvania regulators considered a Clean Water Act permit for the line, FERC granted several Transco requests to begin specific construction activities in certain areas.
The Pennsylvania Department of Environmental Protection ultimately granted the Clean Water Act permit in 2015. But the agency’s review determined that the project area included 31 "exceptional" wetlands — far higher than the seven accounted for in FERC’s environmental assessment.
Delaware Riverkeeper Network attorney Aaron Stemplewicz argued yesterday that the disputed wetlands number underscores the importance of FERC waiting for state Clean Water Act permitting before approving construction activities. The agency’s approval of tree clearing and other activities relied on the 2014 environmental assessment, without the benefit of the information that arose during the state CWA review, he said.
Chief Judge Merrick Garland, a Clinton appointee, zeroed in on the tree-clearing approvals and asked Stemplewicz why his group did not challenge those approvals directly. Stemplewicz responded that such an effort would be futile, as tree clearing would take place faster than the FERC appeals process.
Senior Judge Harry Edwards, a Carter appointee, questioned how FERC’s actions affected the Pennsylvania-based environmental group.
"I’m still not understanding, where is the harm to you?" he asked.
Stemplewicz said the sequencing violates the National Environmental Policy Act because it short-circuits public comment and because the environmental assessment’s wetlands count fails to establish an "accurate baseline" for the review and subsequent mitigation measures.
"You rob the public of that opportunity when you have a situation like this when you don’t have all the correct information," he said after arguments.
FERC attorney Holly Cafer and Transco attorney John Stoviak of Saul Ewing LLP maintained that the petitioners had "ample opportunity" to comment on the environmental assessment while it was being crafted. Cafer also defended the specifics of FERC’s review, noting that the assessment’s process for identifying wetlands relied on Army Corps of Engineers methodology.
In a brief to the court last year, FERC took issue with the notion that the agency "must sit idle" while awaiting state permits.
"But this is unnecessary and undermines the integration of the various permitting requirements for interstate pipelines, as contemplated by the Natural Gas Act and the Clean Water Act," the agency said. "Consistent with decades of Commission practice, and this Court’s precedent permitting project approvals pending receipt of other mandatory federal and state authorizations, the Certificate Order includes appropriate conditions requiring receipt of all applicable federal and state authorizations prior to any construction activity."
Joining Garland and Edwards on the three-judge panel was Judge Thomas Griffith, a George W. Bush appointee.
The Delaware Riverkeeper Network is urging the panel to remand the case to FERC with instructions for the agency to consider the wetlands questions. The court is expected to rule within the next couple of months.