Appeals court says pipelines must pass state reviews

Recorder Staff
Friday, March 17, 2017

An appeals court this week rejected the notion that federal law allows pipelines to proceed without all relevant state reviews.

Tennessee Gas Pipeline Co.’s pipeline through the southern Berkshire town of Sandisfield now can’t proceed before getting final water quality certification from the state.

The First Circuit Court of Appeals deferred to the Massachusetts Department of Environmental Protection’s own process of issuing a final federally required water quality certificate for the proposed Connecticut Expansion Project.

The company, which proposes to extend an existing pipeline in New York, Connecticut and Massachusetts, sought a stay of a DEP adjudicatory hearing and other administrative proceedings after Berkshire Environmental Action Team and a citizens’ group jointly appealed a preliminary certification notice last July.

Richard Kanoff, the lawyer who brought the group’s appeal, said, “The decision means in the future that Kinder Morgan/TGP will be required to procure a final DEP water quality certificate, following a full and complete evaluation. The notion that DEP’s review may be interrupted midstream following an initial determination, as TGP claimed in this case, has been rejected.”

TGP spokesman Richard Wheatley said, “Although we are disappointed with the court’s decision, we are confident that we will successfully complete the permit processes and look forward to executing on this project to increase deliveries of clean, domestic natural gas for New England consumers.”

The conditional approval TGP received included a condition forbidding the company from “conducting any ‘work subject to this Certification, including the cutting of trees,’ until ‘the expiration of the Appeal Period,” according to the 18-page decision by the three-judge panel that included retired U.S. Supreme Court Judge David Souter.

“In a literal sense, state agencies repeatedly take ‘action’ in connection with applications for water quality certifications,” the decision reads. “They docket applications, review them, and express opinions about them. We see no reason, though, to think that Congress wanted us to exercise immediate review over such preliminary and numerous steps that state agencies may take in processing an application before they actually act in the more relevant and consequential sense of granting or denying it.”

The ruling leaves in place DEP’s internal appeal process, which is expected to result in a final decision from the DEP commissioner around March 27, according to Jane Winn, executive director of Berkshire Environmental Action Team. The organization filed the case along with 16 citizens, including Winn, Ashfield Selectboard member Ronald R. Coler, Kathryn Eiseman of the Pipeline Awareness Network for the Northeast, and Rosemary Wessel, cofounder of No Fracked Gas in Mass.

BEAT appealed the DEP’s water quality certification process on the grounds that the agency did not thoroughly consider alternatives, Winn said. The project would pass through Otis State Forest and hurt wetlands, endanger rare species and cause extensive damage to the environment, according to BEAT.

“We appealed on solid grounds, but we’re thrilled it delayed it,” said Winn. She noted that any final decision by DEP could still be appealed to the federal court.

Without a needed 401 water quality certificate, federal and state laws prohibit “authorization of tree-cutting or other activity that will result in the discharge of dredged or fill material” into any water body.

Eiseman said the case is significant because it “helps define the limits to the pre-emptive powers of the Natural Gas Act, and highlights the pivotal role that key state decision-making processes play in interstate pipeline permitting.”

She added, “There are limits to the Natural Gas Act’s pre-emptive powers, that this case is helping to define. Pipeline companies are just trying to go beyond reasonable limits, and the justices were not falling for it at all. … The federal appeals court was saying, ‘Let them work through the agency process.’”

You can reach Richie Davis at rdavis@recorder.com or 413-772-0261, ext. 269