Pipeline Update: Here Today, Gone Tomorrow? FERC’s Natural Gas Pipeline Greenhouse Gas Analysis Policy

Stephen C. Zumbrun

The Republican majority of the Federal Energy Regulatory Commission (“FERC” or “Commission”) has drawn a clear distinction with how and when the Commission will analyze upstream and downstream greenhouse gas (“GHG”) emissions when reviewing natural gas pipeline projects. But with the recent announced resignation by Republican Commissioner Robert Powelson, a pending Notice of Inquiry issued by the Commission, a separate advanced Notice of Proposed Rulemaking issued by the Council on Environmental Quality (“CEQ”), and a recent petition to the D.C. Circuit Court, this current established protocol may not last and by this time next year we may see a whole new approach to pipeline GHG analysis coming out of FERC. Continue reading “Pipeline Update: Here Today, Gone Tomorrow? FERC’s Natural Gas Pipeline Greenhouse Gas Analysis Policy”

Pipeline Update: Pennsylvania Commonwealth Court Allows Environmental Rights Amendment Challenge to Sunoco Pipeline’s Mariner East Project to Proceed

Frank L. Tamulonis III and Stephen C. Zumbrun

The Pennsylvania Commonwealth Court recently ruled that a challenge to Sunoco Pipeline L.P.’s (“Sunoco”) Mariner East Project under Article 1, Section 27 of the Pennsylvania Constitution (the “Environmental Rights Amendment” or “ERA”) may proceed. In Clean Air Council, et al. v. Sunoco Pipeline L.P., Docket No. 112 C.D. 2017 (Opinion issued April 30, 2018), the Court reversed, in part, the trial court’s denial of Sunoco’s motion for summary judgment, ordering an entry of summary judgment for Sunoco on all counts except for Plaintiffs’ claims brought under the ERA.

The case involves a challenge by Clean Air Council (“CAC”) and other individuals to Sunoco’s Mariner East Project, a pipeline construction project designed to transport natural gas liquids across Pennsylvania from the Marcellus and Utica basins to Marcus Hook in eastern Pennsylvania. Plaintiffs brought a variety of claims challenging Sunoco’s right and power to condemn property including a challenge to Sunoco’s public utility status as well as various constitutional claims, including an ERA claim, takings claims, and procedural due process claims. Plaintiffs are seeking declaratory and injunctive relief that would halt pipeline construction. Continue reading “Pipeline Update: Pennsylvania Commonwealth Court Allows Environmental Rights Amendment Challenge to Sunoco Pipeline’s Mariner East Project to Proceed”

Pipeline Update: Decisions in Pennsylvania and the Fourth Circuit Should Pave Way for Pipeline Development

Frank L. Tamulonis III and Margaret A. Hill

Two recent decisions, one from the Fourth Circuit Court of Appeals and one from Pennsylvania’s Commonwealth Court, rejected arguments from pipeline opponents that, if accepted, would have bolstered local efforts to stymie pipeline development. In Orus Ashby Berkley, et al. v. Mountain Valley Pipeline, LLC, landowners challenged Mountain Valley Pipeline, LLC’s (“MVP”) eminent domain authority for the construction of a Federal Energy Regulatory Commission (“FERC”)-regulated pipeline designed to transport natural gas from West Virginia to Virginia. See 2017 U.S. Dist. LEXIS 202907 (W.D. Va. Dec. 11, 2017). Landowners launched a challenge against MVP and FERC, arguing that Congress’s delegation of eminent domain authority to FERC and pipeline developers under the Natural Gas Act (“NGA”) was overly broad and unconstitutional, and that FERC’s standard to determine whether land is being taken for “public use” does not pass muster under the Fifth Amendment. On December 11, 2017, the District Court ruled that the court lacked jurisdiction to consider the constitutional arguments, reasoning that the NGA makes clear that any challenges to FERC orders must be first reheard by FERC, and then can only be challenged in a federal court of appeals. Id. The plaintiff landowners appealed that decision, which is still pending. Continue reading “Pipeline Update: Decisions in Pennsylvania and the Fourth Circuit Should Pave Way for Pipeline Development”