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Category Archives: Judicial/ Administrative Decisions

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Federal Judge Declines to Shut Down Dakota Access Pipeline While Corps Corrects Errors in Environmental Review

Posted in Environmental, Judicial/ Administrative Decisions
Once large infrastructure projects, such as oil and natural gas pipelines, receive federal government approval, they are often the target of legal challenges from opposition groups. Opponents repeatedly argue that the environmental review, pursuant to the National Environmental Policy Act (NEPA), was insufficient. If a court finds deficiencies in the government’s NEPA analysis, can a court halt construction or cease operations even after years of project design, permit approvals at all levels of government, and tens of millions of dollars in investment? This question was at the heart of the ongoing litigation involving the controversial Dakota Access Pipeline (DAPL), and, on October 11, Judge James Boasberg determined “no,” the court would not shut down the pipeline. This case is important precedent for projects being challenged under NEPA. … Continue Reading

FERC: Water Quality Certification Waiver Period for Pipeline Projects Begins Upon Receipt of a Written Request for Certification

Posted in Environmental, Judicial/ Administrative Decisions, Natural Gas
On September 15, 2017, the Federal Energy Regulatory Commission (FERC or the Commission) issued an order in which it concluded that delays by the New York Department of Environmental Conservation (NYDEC or the Department) in processing Millennium Pipeline Company’s application for Clean Water Act (CWA) water quality certification constituted a waiver of the certification requirement. … Continue Reading

Second Circuit Upholds State Veto of Constitution Pipeline Project Via Denial of Water Quality Certification

Posted in Environmental, Judicial/ Administrative Decisions, Natural Gas
As previously reported on PipelineLaw, the ongoing controversy over an April 2016 decision by the New York Department of Environmental Conservation (NYDEC or the Department) to deny a Clean Water Act (CWA) water quality certification to Constitution Pipeline Company (Constitution or the Company) for its interstate natural gas pipeline project in Pennsylvania and New York highlights tensions between federal and state oversight of such projects.… Continue Reading

Standing Rock Dispute Presents Issues Unique to Indian Country

Posted in Environmental, Judicial/ Administrative Decisions, Policy, Public Awareness/ Community Relations
Since the Administration denied a Presidential (border crossing) Permit to the Keystone XL Project in 2015, a number of regional, state or local objections to new pipeline construction projects have emerged around the U.S. Most of the protests have continued themes relied on by opposition to Keystone, including the claim that fossil fuels should remain in the ground in order to limit the impacts of climate change.… Continue Reading

Federal Appellate Review of State Agency Decisions for Interstate Natural Gas Projects Confirmed

Posted in Construction & Design, Environmental, Judicial/ Administrative Decisions, Natural Gas, Policy
The Third Circuit held in a highly anticipated recent decision that state actions on water quality-related permits for interstate natural gas pipeline projects are reviewable only in the federal Circuit Courts of Appeals, in accordance with the Natural Gas Act (NGA). … Continue Reading

Constitution Pipeline Cases Reflect Tension in States’ Roles in Permitting Natural Gas Projects

Posted in Construction & Design, Environmental, Judicial/ Administrative Decisions, Natural Gas, Policy
Recent developments in cases brought by Constitution Pipeline Company to challenge New York’s denial of certain water quality authorizations highlight tensions between federal and state oversight of interstate natural gas pipeline construction projects, and the accompanying potential for costly and protracted delays. … Continue Reading

Challenging Presidential Permitting Authority

Posted in Environmental, Judicial/ Administrative Decisions, Policy
The question of whether Presidential Permit authority is constitutional and/or subject to judicial review has been and continues to be an unsettled issue.  A little more than a month after the State Department’s November 2015 denial of TransCanada’s application for a Presidential Permit to construct its Keystone XL pipeline project, the United States District Court… Continue Reading

Standing on Shaky Ground: Environmental Challenges to Pipeline Projects Falter in Establishing Basis for Suit

Posted in Environmental, Judicial/ Administrative Decisions, Policy
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… Continue Reading

Ninth Circuit Rejects San Francisco Lawsuit Against PHMSA

Posted in Judicial/ Administrative Decisions, PHMSA, Pipeline Safety Act
The United States Court of Appeals for the Ninth Circuit has affirmed dismissal of a lawsuit brought in 2012 by the City and County of San Francisco (San Francisco) to challenge PHMSA’s oversight of State enforcement of pipeline safety standards before and after the San Bruno pipeline incident in 2010. … Continue Reading

Federal Court Upholds Issuance of Nationwide Permits for Pipeline Construction

Posted in Environmental, Judicial/ Administrative Decisions
Nationwide permitting for linear projects, relied upon by pipeline operators for construction and maintenance projects, recently survived a challenge from environmental groups. On December 30, 2013, the U.S. District Court for the Western District of Oklahoma ruled against the Sierra Club and other environmental groups in their challenge to the U.S. Army Corps of Engineers' (Corps) use of Nationwide Permit 12 (NWP 12) for linear utility line projects. … Continue Reading

Pipeline Safety Trust files Amicus Brief in Support of the City of San Francisco’s Ninth Circuit Appeal

Posted in Judicial/ Administrative Decisions, PHMSA, Pipeline Safety Act, Policy
The City of San Francisco is currently appealing the Northern District of California’s dismissal of its claims brought under the citizen suit provision of the Pipeline Safety Act (PSA), including a claim that the Pipeline and Hazardous Materials Safety Administration (PHMSA) is required to ensure that pipeline safety standards are enforced by certified States and should limit the disbursement of federal funds accordingly. … Continue Reading

PHMSA Rules That Releases Must Be Reported Before They Are “Reportable”

Posted in Enforcement, Judicial/ Administrative Decisions, PHMSA, Pipeline Safety Act, Reporting Obligations
In a decision that has significance to hazardous liquid pipeline operators nationally, PHMSA has denied a Petition for Reconsideration of a matter involving an oil tank overflow incident at a Buckeye facility that occurred in 2005.  The oil was contained within a diked area, and promptly cleaned up.  The next day a state environmental official… Continue Reading

Vermont Regulators Issue Jurisdictional Opinion Applying State NEPA to Pipeline Flow Reversal Projects

Posted in Construction & Design, Environmental, Judicial/ Administrative Decisions
On April 15, 2013, the Vermont Natural Resources Board (Board) issued a jurisdictional opinion that Act 250, the State’s land use permitting statute, would apply to flow reversal projects for transport of Canadian tar sands oil.  The opinion was the result of a petition by several environmental groups seeking review of a possible reversal of… Continue Reading

Environmental Group Files Federal Complaint Against PHMSA To Produce Records

Posted in Environmental, Judicial/ Administrative Decisions, PHMSA, Recordkeeping
On April 10, 2013, Public Employees for Environmental Responsibility (PEER) filed suit against PHMSA in the US District Court for the District of Columbia, alleging that the Agency has failed to produce records and documents in response to requests made by PEER under the Freedom of Information Act (FOIA).  The group seeks copies of facility… Continue Reading

Judge Denies Sierra Club Attempt to Stop Keystone Gulf Coast Project

Posted in Construction & Design, Environmental, Judicial/ Administrative Decisions, Policy
On August 5, 2012, the Western District of Oklahoma denied Sierra Club’s attempt to seek a temporary injunction to stop commencement of construction of the southern leg of the Keystone XL pipeline project scheduled to begin August 6, 2012.  In mid-July, Sierra Club challenged the Army Corps of Engineer’s (Corps) Nationwide Permit 12 (NWP 12)… Continue Reading

Western Public Land Utility Corridors Will Be Reevaluated

Posted in Construction & Design, Judicial/ Administrative Decisions
If a Federal Judge for the U.S. District Court for the Northern District of California approves a Settlement Agreement, Utility Corridors designated as a result of Section 368 of the Energy Policy Act (EPAct) may be rerouted over federal lands in the 11 contiguous western states of California, Oregon, Washington, Idaho, Utah, Nevada, Arizona, New… Continue Reading

Second Circuit denies stay of construction of pipeline

Posted in Construction & Design, Environmental, Judicial/ Administrative Decisions
On February 28, 2012, the U.S. Court of Appeals for the Second Circuit lifted an emergency temporary stay of construction activity the court had granted a week earlier on a proposed interstate pipeline and related pipeline facilities in Pennsylvania, serving the Marcellus Shale. The court initially stayed construction pending review of a petition brought by… Continue Reading

Second Circuit stays pipeline construction for failure to examine environmental impacts of Marcellus drilling

Posted in Construction & Design, Environmental, Judicial/ Administrative Decisions
In what could be a significant precedential decision, on February 17, 2012, the U.S. Court of Appeals for the Second Circuit granted an emergency temporary stay of construction activity on a proposed interstate pipeline and related pipeline facilities in Pennsylvania, serving the Marcellus Shale. Under review is a petition brought by the Sierra Club and… Continue Reading

City of San Francisco sues PHMSA

Posted in Judicial/ Administrative Decisions, PHMSA
The City of San Francisco filed suit against PHMSA for allegedly failing to enforce gas pipeline safety standards before and after the San Bruno incident. Notably the lawsuit does not name the California Public Utilities Commission, the California agency certified by PHMSA to regulate intrastate natural gas pipelines. Click here for the Complaint.… Continue Reading