Description: Challenge to FERC approval of the Atlantic Sunrise natural gas pipeline expansion project in Pennsylvania and other locations on East Coast.
Allegheny Defense Project v. Federal Energy Regulatory Commission
Filing Date Type File Action Taken Summary 07/23/2020 Order Download FERC motion to stay issuance of the mandate granted. 07/08/2020 Opposition Download Opposition filed by petitioners to FERC's motion to stay issuance of the mandate. 07/06/2020 Motion Download Motion filed by FERC to stay issuance of mandate. 06/30/2020 Opinion Download FERC's and intervenor’s motions to dismiss the petitions filed after 30 days of FERC inaction denied; petitions for review denied on the merits. D.C. Circuit Rejected FERC Reliance on “Tolling Orders” to Delay Judicial Review. After granting a petition for rehearing en banc in proceedings challenging Federal Energy Regulatory Commission (FERC) authorization of the Atlantic Sunrise natural gas pipeline project, the D.C. Circuit Court of Appeals concluded that the Natural Gas Act did not allow FERC “to issue tolling orders for the sole purposes of preventing rehearing from being denied by its inaction and the statutory right to judicial review attaching.” (The panel was interpreting a provision of the Natural Gas Act that provides that an application to FERC for rehearing will be deemed denied if FERC does not act on it within 30 days.) The D.C. Circuit therefore denied motions to dismiss the initial petitions for review that had been filed 30 days after applications for rehearing. On the merits, however, the en banc court agreed with the original panel that FERC reasonably found market need for the Atlantic Sunrise Project. The en banc court did not revisit the panel’s conclusions that the National Environmental Policy Act review of the project was sufficient. In a concurring opinion, Judge Griffith wrote that tolling orders were “just one part of the legal web that can ensnare landowners in pipeline cases” and that courts should use other tools to protect landowners from inalterably losing their property before judicial review of a pipeline’s authorization is complete. Judge Henderson concurred in the judgment and dissented in part, writing that there was no special justification for departing from the court’s consistent holding that tolling orders were permissible. 03/02/2020 Reply Download Joint reply brief on rehearing en banc filed by petitioners. 02/18/2020 Amicus Brief Download Brief filed by Edison Electric Institute as amicus curiae in support of respondent. 02/18/2020 Amicus Brief Download En banc brief filed by amicus curiae Interstate Natural Gas Association of America in support of respondents. 02/18/2020 Amicus Brief Download Brief filed by Edison Electric Institute as amicus curiae in support of respondent. 02/10/2020 Brief Download Rehearing en banc brief filed by Federal Energy Regulatory Commission. 02/10/2020 Brief Download Joint brief on rehearing en banc filed by intervenors. 01/22/2020 Amicus Brief Download Brief filed by states as amici curiae in support of petitioners. 01/21/2020 Amicus Brief Download En banc brief filed by affected landowners as amici curiae in support of petitioners. 01/17/2020 Amicus Brief Download En banc brief filed by environmental groups as amici curiae in support of petitioners. 01/10/2020 Brief Download Joint brief filed by petitioners on rehearing en banc. 12/05/2019 Order Download Petition for rehearing en banc by Hilltop Hollow Ltd. P'ship et al. granted. D.C. Circuit Granted Rehearing on Due Process Issue in Atlantic Sunrise Pipeline Case. The D.C. Circuit granted a petition for rehearing en banc of its decision upholding authorizations for the Atlantic Sunrise Project, a natural gas pipeline expansion extending from Pennsylvania to Alabama. The court directed the parties to address due process issues addressed in the opinion, including whether the Natural Gas Act authorizes the Federal Energy Regulatory Commission (FERC) to issue tolling orders that extend the statutory 30-day period for FERC action on an application for rehearing. The court’s rehearing order did not mention the National Environmental Policy Act claims on which the court ruled in FERC’s favor, including claims regarding inadequate consideration of downstream greenhouse gas emissions. 10/08/2019 Opposition Download Opposition filed by FERC to petition for rehearing en banc. 10/08/2019 Opposition Download Intervenors filed response in opposition to petitioners' petition for rehearing en banc. 09/16/2019 Petition for Rehearing Download Petition for rehearing en banc filed by petitioners Hilltop Hollow Limited Partnership, Hilltop Hollow Limited Partnership, LLC, and Stephen D. Hoffman. 08/02/2019 Opinion Download Petitions for review denied. D.C. Circuit Upheld Authorizations for Atlantic Sunrise Natural Gas Pipeline Project. The D.C. Circuit Court of Appeals dismissed challenges to the Federal Energy Regulatory Commission’s (FERC’s) authorization of the Atlantic Sunrise Project, a natural gas pipeline expansion extending from Pennsylvania to Alabama. With respect to climate change, the court rejected the argument that FERC had not factored downstream greenhouse gas emissions into its environmental review. Although the court agreed with the petitioners that FERC was obligated to consider both the direct and indirect effects of the project and that downstream greenhouse gas emissions are “just such an indirect effect,” the court found that FERC had already taken the required steps by estimating the amount of carbon dioxide emissions resulting from the gas that the project would transport and predicting that those emissions would be partially offset by reductions in higher carbon-emitting fuel that the project’s natural gas would replace. The court said the petitioners failed to identify “what more [FERC] should have said.” The court also rejected a claim that FERC improperly segmented its review of the Atlantic Sunrise Project by failing to consider the project’s “synergistic effect” on emissions associated with the Southeast Market Pipeline. 06/07/2018 Reply Download Joint reply brief filed by petitioners. 05/24/2018 Brief Download Joint brief filed by intervenors. 05/10/2018 Brief Download Brief filed by FERC. 03/09/2018 Brief Download Joint opening brief filed by petitioners. 11/08/2017 Order Download Emergency motion for stay denied. D.C. Circuit Denied Emergency Stay of Atlantic Sunrise Pipeline Project. On November 8, 2017, the D.C. Circuit denied the motion for an emergency stay filed by environmental groups in late October. 10/30/2017 Motion Download Emergency motion for stay filed. On October 30, 2017, the petitioners challenging FERC’s authorization of the Atlantic Sunrise pipeline project asked the D.C. Circuit Court of Appeals for an emergency stay. The petitioners contended that they had a high likelihood of success on their claims that FERC had not adequately analyzed the climate impacts of the end use of the natural gas transported by the project and had not considered indirect impacts of shale gas drilling that that the project would induce. The petitioners also argued that irreparable environmental injury would occur in the absence of a stay, that a stay would not substantially harm other parties, and that a stay was in the public interest. 09/21/2017 Order Download Motions to dismiss referred to merits panel. While requests for rehearing regarding the Atlantic Sunrise natural gas pipeline expansion project were still pending with FERC, the D.C. Circuit Court of Appeals referred motions to dismiss petitions challenging FERC’s February 2017 authorization of the pipeline project to the merits panel. The parallel proceedings resulted at least in part from FERC’s lacking a quorum earlier in 2017 to rule on the rehearing requests within the required 30-day timeframe. The petitioners contended that FERC’s failure to act on the rehearing requests operated as a denial of the requests and gave them the ability to challenge FERC’s authorization in the D.C. Circuit. FERC and the pipeline project’s developer argued that the D.C. Circuit did not have jurisdiction to hear the challenges. 04/28/2017 Motion to Dismiss Download Motion to dismiss for lack of jurisdiction filed. 03/23/2017 Petition for Review Download Petition for review filed. Environmental Groups Challenged East Coast Pipeline Project in D.C. Circuit. Environmental organizations filed a petition for review in the D.C. Circuit Court of Appeals challenging the Federal Energy Regulatory Commission’s (FERC’s) approvals for the Atlantic Sunrise natural gas pipeline expansion project. The petitioners said that their request for rehearing had been denied because FERC had not acted on it within 30 days. The petitioners asserted that a tolling order issued by FERC staff was invalid. In the request for rehearing, the environmental groups had contended that the environmental review of the project, including its consideration of climate impacts, was deficient.
In re Transcontinental Gas Pipe Line Company, LLC
Filing Date Type File Action Taken Summary 12/06/2017 Order Download Rehearing denied. FERC Denied Rehearing of Approval of Atlantic Sunrise Pipeline. The Federal Energy Regulatory Commission (FERC) denied requests for rehearing of its order authorizing construction and operation of the Atlantic Sunrise Project, which includes approximately 200 miles of interstate natural gas pipeline and related facilities in Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina. Environmental and citizen groups had asserted that FERC failed to take greenhouse gas impacts into account in several ways; FERC rejected each of these arguments. FERC said the National Environmental Policy Act (NEPA) did not require it to consider indirect effects of induced gas production, including greenhouse gas emissions, because there was not a causal relationship between FERC’s action and additional production and, in any event, the scope of impacts from any such induced production was not reasonably foreseeable. FERC also found that it adequately considered the project’s downstream impacts on greenhouse gas emissions and climate change, noting that it had estimated the greenhouse gas emissions associated with combustion of the gas to be transported by the project as required by the D.C. Circuit in its decision regarding the Southeast Market Pipelines Project. FERC said it could not quantify possible effects the project would have on renewable energy production. 09/22/2017 Request for Rehearing Download Amended request for rehearing filed. With FERC and Court Proceedings Pending on Atlantic Sunrise Pipeline Project, Environmental Groups Said FERC Needed to Reassess Greenhouse Gas Impacts. Environmental groups filed an amended request for rehearing with FERC on September 22, 2017, arguing that a supplemental environmental impact statement analyzing greenhouse gas emissions and climate change impacts was required in light of the D.C. Circuit’s August 22, 2017 decision in Sierra Club v. FERC, No. 16-1329, which required FERC to do more to assess downstream greenhouse gas emissions and other climate impacts with respect to another pipeline project. The groups contended that the environmental review of the Atlantic Sunrise project had “impermissibly downplay[ed] cumulative climate impacts” as well as downstream greenhouse gas emissions and asserted that FERC was required to use the social cost of carbon to assess the project’s impacts and to analyze or explore mitigation for the project’s combustion impacts. The groups said FERC should halt construction and rescind a notice to proceed issued earlier in September. 08/31/2017 Order Download Stay denied. FERC Declined to Stay Atlantic Sunrise Pipeline Project; Rehearing Requests Still Pending. FERC denied requests for a stay of its February 3, 2017 order authorizing construction and operation of the Atlantic Sunrise pipeline project. FERC said the parties requesting the stay had not established that they would suffer irreparable harm. FERC noted that it had yet to consider the merits of any requests for rehearing. Parties had argued that flaws in FERC’s review of the pipeline project included failure to address downstream greenhouse gas impacts. 02/24/2017 Request for Rehearing Download Request for rehearing filed. Environmental and Community Groups Seek FERC Rehearing on Atlantic Sunrise Pipeline Project. Two requests for rehearing filed with FERC asked the Commission to withdraw its order authorizing the Atlantic Sunrise natural gas pipeline expansion project and the final environmental impact statement for the project and to redo the environmental analysis and public convenience and necessity analysis in compliance with NEPA and the NGA. The Atlantic Sunrise project included approximately 200 miles of new pipeline, mostly in Pennsylvania, and related infrastructure in Pennsylvania and at other locations on the East Coast. One request for rehearing was filed by seven environmental and community organizations led by Allegheny Defense Project; the other request was filed by Accokeek, Mattawoman, Piscataway Creeks Communities Council Inc. The requests enumerated numerous alleged deficits in the environmental review, including a “fatally flawed” cumulative impacts analysis that “all but ignor[ed] the substantial impacts of Marcellus and Utica shale gas development and climate change” and a failure to adequately consider the project’s downstream impacts on greenhouse gas emissions and climate change. 02/10/2017 Request for Rehearing Download Request for rehearing filed.