New Legal Battle Launched -- Countdown to Win #7

New Legal Battle LaunchedPreventing a Pipeline – Countdown To Our Win #7

Many in the community were concerned that when the State Environmental Hearing Board denied the Delaware Riverkeeper Network and Responsible Drilling Alliance our requested stay on the Tennessee Gas Pipeline Company’s (TGP) NorthEast Upgrade Project (NEUP) that all was lost and the project a foregone conclusion.  But nothing could be further from the truth. 

While we may not have gotten the stay out of the EHB we were fighting for, our legal challenge against the state permits is still very much alive and we are making preparations to pursue that challenge.  We are right on the law and the facts and we intend to prove it.

Part of our challenge to the PA state permits included arguing before a federal judge that TGP is not entitled to an injunction preventing us from pursuing that case.  In an effort to intimidate, TGP filed for an injunction against us and our legal challenge – but in court it was clear to all that we were on the higher legal and moral ground and I have to trust the judge will see that too. 

The federal judge who asked for oral argument on TGP’s request for injunction was clearly well informed and seems up to the challenge of issuing a ruling that will create good new law for all pipeline projects.  Now that we have submitted our briefs and had oral arguments before the judge we must wait for his decision.

But that does not mean we are doing nothing at the Delaware Riverkeeper Network.  In addition to preparing for our legal challenge to the PA permits, this week the Delaware Riverkeeper Network, along with our colleagues at the NJ Highlands Coalition and NJ Sierra Club, filed a petition for an Emergency Stay to halt the TGP NEUP out of another federal court.  Our Petition filed on Thursday January 24 asks the DC Circuit Court of Appeals to issue a stay of the Federal Energy Regulatory Commission’s Order and Certification as well as its Notice to Proceed with Construction issued for the TGP NEUP.   The outcome of our legal challenge to the FERC decisions for the project will also be setting important precedent and law that affects all pipelines.

These legal challenges are vital opportunities for protecting our communities from the damage that pipelines bring, as well as the devastation brought by the drilling and fracking these pipeliens induce and support.  There are not many organizations with the resolve or the resources to pursue legal claims on behalf of the River and our communities the way the Delaware Riverkeeper Network does. 

But, in order to bring these legal challenges, we need to prove we have members that will be affected by the project – their quality of life, their enjoyment of nature, their economic interests, their recreational joy are among the impacts we need to show.  If you are not yet a member but care about the use of litigation to protect the River from pipelines, drilling, fracking and other harms please take a moment and join now at www.delawareriverkeeper.org.

Tennessee Gas Pipeline Company has gotten permission to begin elements of the NEUP and they indicated at the end of last week they were going to begin to proceed.  Specifically FERC said:

I grant your December 13, 2012 and January 16, 2013 requests, as supplemented, for Tennessee Gas Pipeline Company, L.L.C. (TGP) to commence construction of that portion of the Northeast Upgrade Project identified as Loop 325 from milepost 1.0 to the terminus at approximate milepost 7.6 in Bergen and Passaic County, New Jersey.  This authorization also approves the use of the Loop 325 associated access roads.

……..

This approval does not grant TGP the authority to commence construction of the Northeast Upgrade Project Loops in Pennsylvania, or Loop 323 and the Mahwah Meter Station in New Jersey. 

Please know, that just because in this moment they are starting aspects of the project – it does not mean this project is a done deal – we are in court fighting hard.  And there may soon be a call for legal public protest to emphasize our point and to call for ensuring the time and space we need to pursue our legal options.

Countdown to the Prevention of a Pipeline

A week of legal action – but also another week of reprieve.

Let’s start with the good news.

The week began with a third group of citizens joining together to learn about how they can effectively exercise their first amendment rights against this project.  The energy and commitment of the group were inspiring.

January 17, the Tennessee Gas Pipeline Company filed its weekly report in which they said:

        No construction is planned for the coming week.

       Tennessee has scheduled a pre-construction meeting for January 18, 2013 to 
       discuss upcoming activities in Pennsylvania.  The Pennsylvania Department of 
       Environmental Protection, and the Bradford, Wayne, Susquehanna, and Pike County 
      Conservation Districts have been invited to this meeting.

So another week’s reprieve for the community, creeks and trees.

 This week  my attorneys, scientists, and I spent the better part of the week in Harrisburg, arguing our challenge to the Pennsylvania permits issued for the project as part of making our request for a Supersedeas (a set aside of the permits) for the project.  The Delaware Riverkeeper Network attorneys and experts did a great job presenting our case.  Half way through the three day hearing the Tennessee Gas Pipeline Company asked the Environmental Hearing Board judge to dismiss our Supersedeas request – the judge denied them and the hearing continued to completion with testimony going into the evening hours on all three days.

And Wednesday, the 16^th, I was asked to come down and testify before the Delaware State Senate in support of a bill that would require any deals cut for the transfer, lease or other hand over of the port to a private entity would have to come before the State General Assembly before it could go through.  This is important because Kinder Morgan – owner of the Tennessee Gas Pipeline Company as well as owner of other pipeline operations and LNG facilities – currently has a deal in the works.  A vote was called before I, the only supporting witness asked to come down to speak, was asked to testify.  But that’s okay because the vote was a success – 11 to 9 in favor. 

Now the kind of bad news.

The filing of the Delaware Riverkeeper Network joined by the NJ Highlands Coalition, for a stay of the FERC decision to allow the NEUP project to move forward  has been dismissed by the DC Circuit Court.  But don’t fret, that filing went in before FERC filed their denial of our rehearing request – that means the door is open to try again as now we have the FERC response and so more foundation for our challenge.  And we will be refiling. 

Friday the 18^th I will be joining my attorneys in Scranton in order to defend the request for an injunction that the Tennessee Gas Pipeline Company has filed in federal district court against usas well as against the Environmental Hearing Board judges, in order to stop our challenge against the Pennsylvania permits from moving forward. Stay tuned for that one – whichever way the decision goes the case will be setting important precedent for all pipeline projects and whether or not the States are deemed to have permitting authority over them.

So the countdown to our success continues and the trees still stand. 

Tennessee Gas Pipeline Company Lashes -- Countdown to a Pipeline 5

We must be doing something right because the Tennessee Gas Pipeline Company seems to be running a bit scared and as a result is lashing out in an effort to fully undermine state environmental protection in this country.  This week the Tennessee Gas Pipeline Company (TGP) has stooped to bringing a legal action against both the Delaware Riverkeeper Network, our co-plaintiffs, and the State of Pennsylvania – and so whereas once Delaware Riverkeeper Network and the state were at odds over this project, now we are apparent bed fellows and the pipeline company is the adversary to us both.

This week TGP filed a complaint and a motion for preliminary injunction against the Delaware Riverkeeper Network as well as the PA Environmental Hearing Board (EHB) (then amended to name the individual EHB judges) in federal district court for the Middle District of PA in Harrisburg. The basis for the suit they claim is that the EHB doesn’t have jurisdiction to hear our permit challenges for the TGP’s Northeast Upgrade Project (NEUP) because it is pre-empted by the Federal Energy Regulatory Commission (FERC).  What they are saying is that as a matter of federal law, FERC has occupied the field leaving no room for states to regulate interstate natural gas pipelines.  So while the states must issue permits for pipeline projects to move forward, the pipeline companies are claiming at the same time that the federal government has so occupied the field of pipeline regulation that in fact there is no roll for the states, as such the state permits cannot be challenged as legally deficient and that deficiency cannot be used to stop a pipeline project. 

Wow – that is quite a turn of events! 

By way of further irony, on the Delaware River deepening project it was the Army Corps backed by the State of Pennsylvania arguing that the State of Delaware’s environmental protection laws were unenforceable and irrelevant for the river deepening project.  Here we have the pipeline companies making a similar claim for pipelines against Pennsylvania, i.e. that their environmental protection laws simply don’t matter – that is karma for you.  And isn’t it also ironic that while Pennsylvania was pushing the position that state environmental protection should be stripped when it came to the State of Delaware’s environmental protection authority on the deepening project, now the State of Pennsylvania finds itself the one at risk of being stripped of its legal rights and authority.  And in both cases it was the Delaware Riverkeeper Network standing to defend the environmental protection rights and obligations of the states to fully enforce their laws so as to protect the citizens.  We lost the argument for the deepening; let’s hope we don’t lose it here.

The week of January 14 is the hearing on our legal challenge to the Pennsylvania permits, unless of course the pipeline company’s legal challenge changes that in some way.

Also this week, the Delaware Riverkeeper Network, together with the NJ Highlands Coalition, filed an emergency motion in the DC Circuit Court of Appeals asking for a stay of FERC’s order and notice to proceed with construction of the TGP NEUP project.  http://www.delawareriverkeeper.org/resources/PressReleases/2013-01-10%20PR_FERC_challenge_TGP_NEUP.pdf

If the pipeline company tries to start this project while all of these legal battles are still ongoing, I hope you will consider standing with us and the trees to legally exercise your first amendment rights to just say “no”. While the pipeline company may not care what the States or what the laws have to say about their bad project; we citizens do care about our environment, and the rule of law, and it is important we make sure they know it.

January 12 we have another first amendments right training for those who are interested. http://www.delawareriverkeeper.org/about/event.aspx?Id=315

And consider signing the Pledge for Protection of the Delaware River.  

Countdown to a Pipeline – More Time To Stop It And More Actions Too

As promised, the Delaware Riverkeeper Network has remained vigilant and active through the holiday season in our efforts to prevent the Tennessee Gas Pipeline Company (TGP) from cutting through our communities, forests, waterways, wetlands, public and private lands, with its Northeast Upgrade Project (NEUP).

We invested in experts who came out to the proposed project site and tromped with us through the state owned lands and some of the private parcels that would be devastated by the project.  Evidence and data was collected and transformed into very solid reports, that should prove our case to any open minded decisionmakers.

On December 29, the first training for how to effectively, safely and legally exercise first amendment rights in response to the forward movement of the NEUP project was held.  There has been so much interest that we have scheduled a second training on January 12.  Be sure to sign up and come and join with others protesting the construction if the NEUP pipeline should it get so far.  http://www.delawareriverkeeper.org/about/event.aspx?Id=315

Yesterday, January 5^th, the Delaware Riverkeeper Network received a response to our letter communicating our expectation that the project could not start before final decision of our hearing at the state level challenging state permits for the project.   While opposing counsel responded to our letter with a mischaracterization of the facts, they did affirmatively state that the pipeline company had no plans for tree felling activities before January 17.  They also stated that pipeyard preparation work “will start on or around January 14."

The Countdown Continues but step by step, day by day, we are taking on the Tennessee Gas Pipeline Company and making a difference – pushing further and further back the date when they may even attempt to impose their devastation, let alone legally do so.   With so much on the line how could we not?

Ø  Residential communities, public and private lands, cut through without regard for what the homeowners or taxpayers think.

Ø  At least 128 streams cut through and crossed

Ø  29,468 linear feet and 54.6 acres of wetlands denuded, developed and irreversibly damaged.  

Ø  53.1 acres of lands, including forested lands, damaged for pipeline access roads.

Ø  Another 46.8 acres devastated to accommodate the work space needed to put the pipeline in, including in areas where this requires the cutting of 100 year old mature forest.

In our Delaware River watershed we are looking at 24.47 miles of pipeline:

Ø impacting 450 acres of land,

Ø crossing 1,729 feet of 90 waterbodies, mostly using the open cut method of stream crossing,

Ø crossing 17,777 feet of 136 wetlands,

Ø and the construction of at least 29 access roads.

With all this damage being brought on to service the shale gas devastation that is happening across Pennsylvania and the nation how could we not do everything we can to stop it? 

We couldn’t.