The US Court of Appeals for the Third Circuit recently issued two decisions concerning the relationship between the Natural Gas Act (NGA) exclusive jurisdiction provision at 15 U.S.C. § 717r(d)(1) and the administrative review process for state-issued environmental permits for interstate natural gas pipeline projects. These decisions are briefly described as follows:

  • In Delaware Riverkeeper et al. v. Sec PA Dept. Env. Protection, et al. (Sept. 4, 2018), the court held that only “final” state agency actions are reviewable under the NGA’s exclusive jurisdiction provision. The court determined, however, that the state-issued water quality certification at issue was reviewable “final” action even though it was subject to further administrative review because, under the relevant state law, the certification had legal effect as issued and was the final action of the agency that issued it.
  • In Township of Bordentown, New Jersey et al. v. FERC et al. (Sept. 5, 2018), the court held that state administrative review of environmental permits issued for natural gas pipeline projects is not preempted by the NGA’s exclusive review provision, as the NGA only eliminates state court review of interstate pipeline-related state agency orders.

 

To learn more, read the entire article here, at PipelineLaw.com.

On July 10, 2018, a panel of the United States Court of Appeals for the DC Circuit rejected an environmental group’s claim that FERC’s funding mechanism results in unconstitutional bias in favor of the pipeline industry. The court also rebuffed a due process attack on the Commission’s use of “tolling orders” to avoid automatic denial of rehearing requests after 30 days. The decision is noteworthy as it represents the latest rejection of similar constitutional challenges to FERC’s operations and practices that pipeline opponents have been raising with increasing frequency. The ruling also highlights the difficulty of bypassing the Natural Gas Act’s administrative rehearing and judicial review process through novel broadside attacks on the Commission’s general practices and procedures.

See the full report on PipelineLaw.com.

On January 31, 2018, in proceedings to condemn easements for the Mountain Valley Pipeline project, the US District Court for the Western District of Virginia ruled that the pipeline company’s preliminary injunction motions for pretrial possession of the easements would be granted only if it appraised each of the nearly 300 properties at issue.

Read the full report on PipelineLaw.com.