Tennessee Gas Pipeline Company’s Northeast Upgrade Project (NEUP) is an interstate transmission line upgrade project. The Project was one of a series four interconnected pipeline projects Tennessee launched in a three year span to add a new 30-inch diameter pipeline beside its existing 300 Line natural gas pipeline. First, the 300 Line Upgrade added 127 miles of new pipeline in eight non-contiguous sections (“loops”). Second, the Northeast Supply Diversification project added pipeline in a gap left by the 300 Line Upgrade. Third, the Northeast Upgrade Project, added 40 miles of pipeline in five loops that bridged gaps left by the 300 Line Upgrade. Lastly, the MPP project added pipeline in the remaining gap. The NEUP is the final pipeline upgrade project in TGP’s multi-stage 300 Line upgrade project, although TGP has tried to disguise the interdependence of its 300 Line upgrade project components to avoid critical environmental regulation and oversight. Three of the loops that are part of the Northeast Upgrade Project are located within the Delaware River Basin (Loops 321, 323, and 325), spanning Wayne and Pike Counties in Pennsylvania and Sussex County in New Jersey.
The project included pipeline drilling activities under the Delaware River, significant new grading and clearing of previously undisturbed forested land and steep slopes, 90 stream crossings, 136 wetland crossings, and 450 acres of land development within our watershed alone. Highpoint State Park and Delaware State Forest are among the public lands that will be damaged by this project.
Within 24 months, Tennessee Gas Pipeline Company applied to FERC for approval of five interdependent pipeline looping and compressor station upgrade projects that together will compose the Eastern Leg of the 300 Line, starting at compressor station 313 in Potter County, Pennsylvania and stretching east to a delivery point in Mahwah, New Jersey.
Tennessee Gas Pipeline L.L.C. submitted its certificate application for the Northeast Upgrade Project to the Federal Energy Regulatory Commission on March 31, 2011. The Federal Energy Regulatory Commission issued a separate Environmental Assessment and Finding of No Significant Impact for each of these four interrelated projects, which contravened the National Environmental Policy Act.
In May 2012 the Federal Energy Regulatory Commission (FERC) issued a certificate of public convenience and necessity to Tennessee Gas Pipeline Company authorizing construction and operation of its Northeast Upgrade Project. Delaware Riverkeeper Network, the NJ Sierra Club and New Jersey Highlands Coalition argued that the approval was inappropriate because FERC had illegally segmented its environmental review of the Northeast Project by failing to consider three other connected and interdependent projects – the 300 Line Project, the Northeast Supply Diversification Project, the MPP Project – and by failing to provide a meaningful analysis of the cumulative impacts of the projects.
In January of 2013 the Delaware Riverkeeper filed a Petition for Review in the D.C. Circuit Court of Appeals challenging the Federal Energy Regulatory Commission’s final order approving the Northeast Upgrade Project. After oral argument, where the agency’s legal argument was characterized as “gobbledygook” by Judge Edwards, the D.C. Circuit court ruled in favor of the Delaware Riverkeeper in a 3-0 decision on June 6, 2014. The panel of judges found that the Federal Energy Regulatory Commission violated NEPA by: “(1) segmenting its environmental review of the Northeast Upgrade Project – i.e., failing to consider the Northeast Upgrade Project in conjunction with three other connected, contemporaneous, closely related, and interdependent Tennessee Gas pipeline projects – and (2) failing to provide a meaningful analysis of the cumulative impacts of these projects to show that the impacts would be insignificant.” Delaware Riverkeeper Network, et al. v. Federal Energy Regulatory Commission, 753 F.3d 1304, 1307 (D.C. Cir. 2014). The United States Court of Appeals for the District of Columbia, ruled that the Delaware Riverkeeper Network, the NJ Sierra Club and New Jersey Highlands Coalition were correct in their legal challenge to the Tennessee Gas Pipeline Company’s Northeast Upgrade Project and ordered additional analysis and review.
The Court stated: “On the record before us, we hold that in conducting its environmental review of the Northeast Project without considering the other connected, closely related, and interdependent projects on the Eastern Leg, FERC impermissibly segmented the environmental review in violation of NEPA. We also find that FERC’s EA is deficient in its failure to include any meaningful analysis of the cumulative impacts of the upgrade projects. We therefore grant the petition for review and remand the case to the Commission for further consideration of segmentation and cumulative impacts.” “On the record before us, we find that FERC acted arbitrarily in deciding to evaluate the environment effects of the Northeast Project independent of the other connected action on the Eastern Leg.”
On October 1, 2014 Petitioners submitted a motion for attorneys’ fees and costs, pursuant to the Equal Access to Justice Act in the amount of roughly $170,000, which represented the approximate time and money invested by the Delaware Riverkeeper Network in the successful litigation. The Federal Energy Regulatory Commission argued that it’s legal position was “substantially justified,” and thus the agency was exempt from providing fees. The D.C. Circuit issued two Per Curiam Orders on November 4, 2014 and February 2, 2015 denying the Delaware Riverkeeper Network’s request for fees providing no explanation.