Court will not block NC, Va pipeline as environmental groups appeal

The 4th US Circuit Court of Appeals will not block a 55-mile natural gas pipeline project from moving forward in North Carolina and Virginia as environmental groups challenge a federal water permit.

A unanimous 4th Circuit panel issued a five-page order Monday rejecting the environmental groups’ request for a stay in the legal dispute.

The decision clears the way for the Transcontinental Gas Pipe Line project — dubbed the Southeast Supply Enhancement Program — to move forward during litigation over a permit issued by the US Army Corps of Engineers.

“The merits turn on whether the Corps’ issuance of the section 404 permit was arbitrary and capricious,” according to Monday’s order. “Petitioners argue it was for two reasons. Neither persuades.”

“Here, Petitioners show no more than a disagreement with how the Corps evaluated the alternatives and cumulative evidence,” the order added. “Petitioners want more but Transco (and the Corps) did enough.”

“Transco supplied — and the Corps analyzed — the project’s cumulative impacts to the watersheds and streams based on time, geography, and other considerations,” the 4th Circuit order explained. “On that information, the Corps determined that the impacts were ‘not significant,’ but still required ‘[c]ompensatory mitigation … to offset the impacts of the proposed activity.’ And indeed, Transco developed a Restoration Framework that includes ‘monitoring, restoration, and mitigation work’ at the site.”

“We’re satisfied at this preliminary stage that the Corps’ permitting decision was neither arbitrary nor capricious,” the order added.

The timing of the environmental groups’ request “cautions against granting relief,” the judges added. “Construction on the project began in early March and has continued since then. On this record, we decline to hit pause.”

Chief Judge Albert Diaz and Judges Paul Niemeyer and Marvin Quattlebaum heard oral arguments in the case on May 13.

The project is designed to provide natural gas to Duke Energy customers. The North Carolina portion of the project involves “28.4 miles of pipeline looping adjacent to existing Transco corridors located in Rockingham, Guilford, Forsyth, and Davidson Counties and additional compressor units in Cleveland, Iredell, and Davidson Counties,” according to the pipeline’s operator.

Environmental groups Appalachian Voices, Haw River Assembly, 7 Directions of Service, Sierra Club, and Wild Virginia are fighting a permit the Army Corps of Engineers issued in February. Critics argue that neither Transco nor the Army Corps provided enough documentation supporting plans to use “dry-ditch, open-cut” methods of crossing streams affected by the pipeline.

The groups sought a stay from the 4th Circuit that would have blocked the pipeline project throughout the appeal process.

“The Corps failed to independently verify Transco’s claim that drilling beneath these streams was impracticable,” lawyer Derek Teaney argued for the environmental groups. “Second, the Corps assessed cumulative impacts on scores of stream and wetlands crossings without crucial baseline quality data from a single one of them.”

The Corps “did not cut corners,” responded Mary Gabrielle Sprague, representing the government agency. “The Corps went through the usual process.”

“There were not corners cut, but there were long hours worked to get this application processed,” Sprague added.

The Corps lawyers defended Transco’s plans for stream and wetlands crossings.

“There’s more and more evidence all the time that this method is the most protective of the stream in these kinds of conditions,” she said.

Transco’s lawyer questioned the timing of the environmental groups’ requested stay.

“They waited more than 50 days to come to this court,” argued George “Trey” Shibley. “That is an eternity in connection with a big project like this. During that time period, Transco has fully mobilized across 50 miles of right of way in two states.”

“They’ve spent tens of millions of dollars on that mobilization, and we are now fully engaged across the project area,” Shibley added.

Delaying the project now likely would lead to more environmental harm, Shibley suggested. “Getting in and getting out is really important,” he argued. “It serves no one’s interest for this project to be put on ice for multiple months.”

Diaz pushed back on Transco’s questions about the environmental groups’ timing.

“We’re dealing with sophisticated parties here on both sides,” Diaz said. “It seems to me that Mr. Teaney and his clients certainly have been to this rodeo more than once.”

“From what I understood from Mr. Teaney’s papers, they didn’t have all the information they claim they needed to be able to pursue litigation,” Diaz said.

Niemeyer expressed the most open skepticism during oral arguments about the environmental groups’ case.

“The record shows that the public interest in this was not to halt it, that there’s an emergency energy shortage,” Niemeyer said. “They said they had spent $56 million to date, and they have hundreds of workers on site that would all be put in limbo.”

“In circumstances like this this, where we have large amounts of money that are going to be … wasted for Transco, it seems to me that you would have to be prepared to put up a bond — maybe $100 million or so,” Niemeyer said to the environmental groups’ lawyer.

Niemeyer and Teaney also clashed over the impact of Transco’s project.

“This is like a child who is digging harbors at the side of the stream and putting the mud into the stream,” Niemeyer said. “It goes downstream a little ways and then settles out.”

“Is a threat to the environment of the kind that requires this project to be halted and the construction to be stopped?” he asked.

“When things go wrong with one of these crossings, they go majorly wrong,” Teaney responded. “It is not child’s play.”

“This stay motion seeks to prevent imminent irreparable harm to Virginia and North Carolina streams and wetlands,” lawyers for the environmental groups wrote in an April 22 court filing. The challenged permit “allows Transco to trench through streams and wetlands in Virginia and North Carolina using destructive dry-ditch, open-cut methods.”

The document cites two reasons why the decision to issue the permit was “arbitrary and capricious.”

First, “Transco failed to rebut the presumption under the 404(b)(1) Guidelines that dry-ditch, open-cut crossings are not the least environmentally damaging practicable alternative (‘LEDPA’) with respect to Special Aquatic Sites, like wetlands and riffle-and-pool complexes,” the environmental groups argued. “Second, the Corps did not adequately assess cumulative impacts to streams and wetlands as required by the 404(b)(1) Guidelines.”

A stay during the course of the appeal “is necessary to prevent imminent irreparable harm from activities authorized by the Permit,” the court filing added. The groups cited drilling of a “trenchless crossing of Interstate 40 that will progressively foreclose the less damaging crossing alternatives that Transco and the Corps failed to demonstrate were impracticable.”

The Army Corps of Engineers responded to the environmental groups on April 30.

“For decades, Transcontinental Gas Pipe Line Company, LLC (Transco) has owned and operated a natural gas pipeline system extending from Texas to New York City,” federal government lawyers wrote. “Its Southeast Supply Enhancement Project includes the construction of two pipeline loops totaling 55.3 miles adjacent to, and almost entirely within the existing right of way for, the Mainline in North Carolina and Virginia.”

“The Federal Energy Regulatory Commission (FERC) has determined that the Project serves the public convenience and necessity by providing increased capacity and reliability without significant environmental impacts,” the Army Corps’ court filing continued.

“The Corps permit … authorizes Transco to discharge excavated materials into about 27 acres of streams and wetlands to construct the two new pipeline loops across those waters, subject to extensive conditions to avoid, minimize, and mitigate adverse effects on the waters,” government lawyers wrote. “The Corps reasonably determined that the permitted discharges — both individually and cumulatively — will cause only minimal environmental impacts and that the open-cut construction method proposed by Transco for the permitted crossings is the ‘Least Environmentally Damaging Practicable Alternative.’”

“Petitioners sat on their hands for two months after the time for judicial review began, and then filed this motion, asserting the need for an immediate stay pending review,” the Army Corps’ lawyers argued. “The Court should deny Petitioners’ stay request because they are unlikely to prevail on their claim that the Corps failed to comply with applicable regulations and because they have not demonstrated that they have met the other requirements for a stay pending review.”

Transco filed its own response on April 30.

“Transcontinental Gas Pipe Line Company, LLC (‘Transco’) is undertaking its Southeast Supply Enhancement Project (the ‘Project’ or SSE) because Americans need the affordable and reliable energy SSE will deliver,” the company’s lawyers wrote. “Construction is now well underway under a series of authorizations crafted over years by State and federal regulators to protect the environment during and after Project construction.”

“Petitioners here attack one of those authorizations — the U.S. Army Corps of Engineers (‘Corps’) Clean Water Act (CWA) section 404 Permit for the Project,” the Transco court filing continued. “They say the Corps failed to evaluate trenchless alternatives to cross streams and wetlands and should have analyzed cumulative effects differently.”

“At the heart of both arguments is the claim, contradicted by study after study, that dry open cuts of streams and wetlands necessarily cause permanent damage to the aquatic environment,” company lawyers wrote. “Petitioners are wrong across the board, and certainly not likely to succeed in showing that the Corps acted outside its broad discretion.”

“Nobody skipped a step here, least of all the Corps,” Transco lawyers wrote. “Petitioners should not succeed on the merits, and that is reason alone to deny the motion. A stay would also imperil the hundreds of workers now deployed across Project site and the very environmental resources Petitioners say they want to protect, all while costing Transco scores of millions of dollars and creating fuel insecurity and price volatility for Duke’s ratepayers in the Southeast.”

“Court will not block NC, Va pipeline as environmental groups appeal” was originally published on www.carolinajournal.com.