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Delaware Riverkeeper Network, et. al. v. Federal Energy Regulatory Commission

On March 31, 2011, Tennessee Gas Pipeline L.L.C. submitted its certificate application for the Northeast Upgrade Project to the Federal Energy Regulatory Commission. 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 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 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).

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.