Tenn. Gas Pipeline Co. v. Del. Riverkeeper Network

• Decision Date: 05 February 2013
• Docket Number: No. 3:13–CV–46.,3:13–CV–46.
• Citation: 921 F.Supp.2d 381
• Parties: TENNESSEE GAS PIPELINE CO. LLC, Plaintiff v. DELAWARE RIVERKEEPER NETWORK et al., Defendants Secretary Michael Krancer, Intervenor.
• Court: U.S. District Court — Middle District of Pennsylvania

921 F.Supp.2d 381

TENNESSEE GAS PIPELINE CO. LLC, Plaintiff

v. DELAWARE RIVERKEEPER NETWORK et al., DefendantsSecretary Michael Krancer, Intervenor.

No. 3:13–CV–46.

United States District Court, M.D. Pennsylvania.

Feb. 5, 2013.

Elizabeth U. Witmer, Saul Ewing LLP, Wayne, PA, Jennifer L. Beidel, John F. Stoviak, Saul Ewing LLP, Philadelphia, PA, for Plaintiff.

Jane P. Davenport, Delaware Riverkeeper Network, Bristol, PA, Jordan B. Yeager Curtin & Heefner LLP, Doylestown, PA, for Defendants.

MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

1. Introduction and Procedural History

Plaintiff Tennessee Gas Pipeline Company LLC (“TGPC”) filed an Amended Complaint (Doc. 11) and Amended Motion for Emergency Preliminary Injunction (Doc. 12) on January 8, 2013 seeking, inter alia, a declaratory judgment that the Natural Gas Act preempted Pennsylvania's Environmental Hearing Board (“EHB”) from reviewing permits that the state's Department of Environmental Protection (“PADEP”) had issued to TGPC as required by the Federal Energy Regulatory Commission's (“FERC”) Order dated May 29, 2012, These permits had been appealed to the EHB by Defendants Delaware Riverkeeper Network, Maya Van Rossum, and Responsible Drilling Alliance (collectively, “DRN”).

The Court orally granted Secretary Krancer's Motion to Intervene (Doc, 19) during a conference call with all parties on January 11, 2013 and later memorialized the Order in a written Order on January 15, 2013. (Doc. 28). At that same conference call, all parties agreed there was no need for an evidentiary hearing for the purposes of Plaintiff's motion. (Tr. of Conf. Call, Doc. 35, at 20:22–21:14). Following briefing by all parties, the Court held oral argument on Plaintiff's motion on January 18, 2013.¹ Finally, on January 30, 2013, the Court ordered DRN and PADEP to supplement the record with any written findings that PADEP may have made, any correspondence issued, and any other relevant documents or information related to the three permits in dispute. (Doc. 42). Both DRN and PADEP duly complied with the Order. (Docs. 43–46, 48, 50).

The matter is now ripe for disposition.² For the reasons that follow, the Court will grant TGPC's Motion for Preliminary Injunction.

2. Statement of Facts³

On March 31, 2011, Plaintiff TGPC applied for a Certificate of Public Convenience and Necessity for TGPC's Northeast Upgrade Project (“Project”) under the Natural Gas Act (“NGA”), 15 U.S.C. §§ 717–717z and FERC's regulations, 18 C.F.R. Part 157. (Doc. 31, Ex. A). In November 2011, FERC staff issued an Environmental Assessment (“EA”) ⁴ under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321– 4370f and recommended that the “FERC Order contain a finding of no significant impact and include [certain] mitigation measures ... as conditions of any Certificate the Commission may issue.” (Doc. 13, Ex. D, Part 5, at 4–1). The recommendations were contingent on TGPC's compliance with applicable federal, state, and local laws, including the obtainment of certain state permits. ( See Section 1.9 of EA 1–21; Table 1.9–1, at 1–22).

On May 29, 2012, FERC issued an Order (“FERC Order”) to TGPC (138 F.E.R.C. ¶ 61, 161, submitted as Doc. 13, Ex. A). FERC issued a Certificate of Public Convenience and Necessity which authorized TGPC to “construct, install, modify, operate, and maintain certain pipeline and compression facilities to be located in Pennsylvania and New Jersey.” ( Id. at ¶ 1). The Order, however, required TGPC to comply “with the environmental mitigation measures set forth in Appendix B,” ( id. at ¶ (E), at 74) which mandated TGPC's compliance with mitigation measures set forth in the EA. ( Id. at App. B, ¶ 1).

The FERC Order addressed many concerns that commenters had raised. In response to one criticism of the EA, the FERC Order stated:

The EA does not defer our NEPA responsibilities to other agencies; rather it explains that based on Tennessee's compliance with other laws and mitigation required by the Commission and other agencies, the EA can recommend a finding of no significant impact .... The EA acknowledges the reality that Tennessee will be required to comply with other federal and state laws not administered by the Commission and implement additional mitigation measures required by other federal and state agencies.

(FERC Order, ¶ 200). Furthermore, the Order sought to allay concerns that the lack of specificity regarding state permits would allow TGPC to shirk its obligations:

It is not unreasonable for the EA to assume that Tennessee will comply with permit requirements because other agencies will require Tennessee to do so. Multiple agencies, including New Jersey DEP, Pennsylvania DEP, the Corps, and others must issue separate authorizations for many of the planned construction activities and environmental impacts. As pointed out through the EA and in this order, many of the resource areas addressed in the EA are protected by federal and state laws to which Tennessee is obligated to adhere.

( Id. at ¶ 171). The Sierra Club also voiced its belief that TGPC's violation of Pennsylvania's Clean Streams Act, 35 Pa. Stat. § 691.401, was a near certainty based on TGPC's history of alleged non-compliance. However, the Order responded that “Tennessee's compliance with the Pennsylvania Clean Streams Act is the responsibility of the Pennsylvania DEP to which Tennessee will answer if it does not comply.” ( Id. at ¶¶ 176).

On June 28, 2012, DRN and others filed a Request for Rehearing before the FERC in which DRN requested a stay of the May 29 Order; FERC denied the petition for stay on January 11, 2013. (Doc. 20, Ex. A, ¶ 1). Following FERC's denial, on January 18, 2013, DRN appealed FERC's May 29 Order to the United States Court of Appeals for the District of Columbia pursuant to 15 U.S.C. § 717r(b).⁵ (Doc. 37, Ex. A).

Meanwhile, TGPC had obtained three permits from the PADEP on November 21, 2012: one Erosion and Sediment Control General Permit (“ESCGP–1”) under 25 Pa.Code Ch. 102 and two Water Obstruction & Encroachment Permits under 25 Pa.Code Ch. 105.⁶

FERC issued a Notice to Proceed to TGPC on December 14, 2012. On December 19, 2012 DRN appealed PADEP's issuance of the three TGPC permits to the EHB. After denying the petition for temporary supersedeas on December 20, 2012, the EHB scheduled a hearing on DRN's petition for supersedeas from January 14–16, 2013. (Doc. 13, Exs. E, F, Doc. 49, Ex. A, at 3). The EHB denied the supersedeas on January 17, 2013 and issued its opinion on February 1, 2013. (Doc. 49, Ex. A).

3. Standards for Injunctive Relief

This Court must consider four factors when ruling on Plaintiff's motion for preliminary injunction: (1) whether TGPC has shown a reasonable probability of success on the merits; (2) whether TGPC will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the Defendants; and (4) whether granting preliminary relief will be in the public interest. Am. Exp. Travel Related Serv., Inc. v. Sidamon–Eristoff, 669 F.3d 359, 366 (3d Cir.2012). “The burden lies with the plaintiff to establish every element in its favor, or the grant of a preliminary injunction is inappropriate.” P.C. Yonkers, Inc. v. Celebrations the Party and Seasonal Superstore, LLC, 428 F.3d 504, 508 (3d Cir.2005).

4. Analysis

1. Under the Applicable Law, TGPC is Entitled to a Preliminary Injunction

i. Reasonable probability of success on the merits

a. Preemption

Before reaching the heart of the issue, the Court would first point out that this is not, as Plaintiff contends, a case that turns on preemption. It is true that the cases which Plaintiff cites stand for the proposition that the NGA generally preempts state review of permits issued pursuant to the NGA or FERC orders. See, e.g., Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 305, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988) (“Congress occupied the field of matters relating to wholesale sales and transportation of natural gas in interstate commerce.”); N. Natural Gas Co. v. Iowa Utils. Bd., 377 F.3d 817, 823 (8th Cir.2004) (“[W]e are obliged to hold that the Iowa provisions regulate in an area over which the FERC exercises authority granted by Congress, and that [the state laws and administrative regulations], are preempted.”); Nat'l Fuel Gas Supply Corp. v. Pub. Serv. Comm'n, 894 F.2d 571, 579 (2d Cir.1990) (“Because FERC has authority to consider environmental issues, states may not engage in concurrent site-specific environmental review.”); see also NE Hub Partners, LP v. CNG Transmission Corp., 239 F.3d 333, 348 (3d Cir.2001) (“[I]f it is evident that the result of a process must lead to conflict preemption, it would defy logic to hold that the process itself cannot be preempted.”); Rockies Express Pipeline LLC v. Indiana State Natural Res. Comm'n, No. 1:08–CV–1651, 2010 WL 1881084, at *2 (S.D.Ind. May 7, 2010). However, none of these cases involved the issuance of a permit pursuant to the Clean Water Act, 33 U.S.C. §§ 1251 et seq., which is the case here.⁷

The NGA, under 15 U.S.C. § 717b(d), specifically carves out an exception for the CWA: “[e]xcept as specifically provided in this chapter, nothing in this chapter affects the rights of States under the Federal Water Pollution Control Act [the Clean Water Act] (33 U.S.C. 1251 et seq.).” Under Section 401 of the CWA, “[a]ny applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate.” 33 U.S.C. § 1341(a)(1).

In fact, Islander East Pipeline Co., LLC v. Connecticut Dep't of Envtl. Prot., states that though “Congress wholly preempted and completely federalized the area of natural gas regulation by enacting the NGA, ... Congress did not, however, thereby supersede any other federal statutory...