Environmental groups often seek to delay or stop pipeline projects by filing legal challenges under various state and federal environmental and/or energy laws. Recent court decisions have illustrated the difficult nature of such challenges, and in particular the difficulty environmental groups have in making a threshold showing of the legal basis for their challenge. An offshoot of the well-established principle that a litigant cannot raise someone else’s rights in court, the legal doctrine of ‘standing’ requires a litigant to demonstrate its interest in an actual case or controversy as a preliminary requirement for a case to be heard and decided in a court of law. In addition, a litigant citing a particular statute as the basis for a lawsuit must establish that it has an interest at stake that is within the ‘zone of interests’ protected by that statute.
Recent decisions on this issue reflect an uptick in the number of challenges to pipeline projects brought by environmental groups, as well as increased creativity in the approaches these groups take in attempting to establish a legal basis for their challenge. They also reflect an increasing tendency for courts to dismiss such cases because the group lacked standing to bring the challenge, or because the issues raised were outside of the scope of relief available under a particular statutory or regulatory scheme.
As an example, the D.C. Circuit Court of Appeals recently issued an opinion dismissing a suit filed by a Maryland environmental group to challenge a FERC-issued Certificate of Public Convenience and Necessity to a natural gas pipeline. Gunpowder Riverkeeper v. FERC, No. 14-1062 (D.C. Cir. July 21, 2015). As the statutory basis for its challenge, the group alleged that FERC had violated both the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA) in issuing the pipeline’s Certificate. In an attempt to demonstrate an ‘interest’ at stake in the lawsuit, the environmental group complained of harms to its members’ individual property rights if their property was subject to eminent domain proceedings, which were authorized by the Certificate in accordance with the Natural Gas Act (NGA). While the D.C. Circuit agreed that these were concrete interests that the group could assert in court, it determined that they were not within the zone of interests protected by NEPA, the CWA, or the NGA, and dismissed the suit for lack of a legislatively conferred cause of action.
Challenges to pipeline construction projects have been struck, in whole or in part, by State decision-makers on similar grounds, i.e. that the challengers lacked standing to bring the challenge or that they raised issues outside of the jurisdiction of the relevant authority or the scope of proceedings. State environmental laws and regulations generally require a showing of standing from challengers to permitting or enforcement decisions, and that the interests asserted are within the “zone of interests” protected under the statutory or regulatory scheme cited. See, e.g., O.C.G.A. § 12-2-2(c)(3)(A) (restricting challenges under State environmental laws to litigants who can demonstrate that the challenged action has or will cause them injury in fact, and that the injury is to an interest within the zone of interests to be protected or regulated by the statutes which the State environmental protection agency is empowered to administer and enforce). These requirements are intended to ensure that the judicial or administrative adjudication process is reserved for actual cases and controversies, and that challengers allege concrete and particularized harms that the statutory scheme at issue is designed to protect.