May 07, 2020

Pipelines, communities, and the environment: The growing complexities of siting

Hannah Wiseman

Introduction

As U.S. companies continue to produce large quantities of oil and gas from unconventional formations, the need for new pipelines grows. By some estimates, more than 41,000 miles of new oil and gas pipelines will be built in the United States by 2035. ICF Consulting, North American Midstream Infrastructure Through 2035 (2018), https://www.ingaa.org/File.aspx?id=34658. The U.S. pipeline buildout has sparked a vociferous response from communities, environmental groups, and other citizen groups. The U.S. Federal Energy Regulatory Commission (FERC) approves the construction and siting of all interstate natural gas pipelines, and a growing number of legal challenges have borrowed from the full arsenal of environmental and public lands law to attempt to halt or slow down pipeline construction.

Public lands

In what is likely the best-known case due to a grant of certiorari by the U.S. Supreme Court, the U.S. Court of Appeals for the Fourth Circuit in Cowpasture River Preservation Association v. Forest Service, 911 F.3d 150 (4th Cir. 2018) found that the U.S. Forest Service could not use the Mineral Leasing Act to grant a pipeline right of way (ROW) under the Appalachian National Scenic Trail for the Atlantic Coast Pipeline. The court reasoned that the entire Appalachian Trail is part of the National Park System, and the Mineral Leasing Act does not allow for the granting of a pipeline ROW within the National Park System regardless of whether the Forest Service or another agency approves the ROW. The court also found multiple National Environmental Policy Act (NEPA) violations as a result of the Forest Service’s failure to adequately consider erosion and water quality impacts, among other impacts. Oral argument before the Supreme Court was in February.

NEPA: Indirect effects

In another growing set of cases, groups that oppose pipelines have focused on the requirement for considering indirect effects of pipelines under NEPA. One large victory for environmental groups in Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) suggests that the case outcomes in this area could be mixed. In Sierra Club, the U.S. Court of Appeals for the District of Columbia Circuit found that FERC had to consider the indirect downstream effects of the pipeline—the impact of burning natural gas from the pipeline in power plants—because the agency is a “legally relevant cause” of the downstream effects, in that it could deny a pipeline certificate on the basis of environmental harm. And in this case, FERC knew that the pipeline would provide gas to specific power plants in Florida, thus making the effects reasonably foreseeable. 867 F.3d at 1372.

In a subsequent indirect effects case, FERC argued that it is required to consider downstream effects of a gas pipeline only when they are as clear as they were in Sierra Club—when the agency “actually” knows the specific volume of gas that will flow through the pipeline, and when the entire purpose of the pipeline is to transport gas to “specifically-identified” destinations. Birckhead v. FERC, 925 F.3d 510, 519 (D.C. Cir. 2019). In a per curiam opinion, the court rejected FERC’s proposed test for downstream indirect effects, but it also rejected the appellants’ claim that all “combustion-related emissions are necessarily a reasonably foreseeable indirect effect of a pipeline project.” Rather, the court emphasized that whether a gas pipeline’s downstream effects must be considered will be a case-by-case inquiry. When the agency has or could reasonably acquire information about where and how much gas will be burned, it likely must consider downstream indirect effects.

Arguments for considering upstream indirect effects—when building a pipeline triggers the drilling and hydraulic fracturing of more natural gas wells—have tended to be unsuccessful. For example, in Birckhead, the court ruled that a simple determination of need by FERC does not establish that the pipeline is the only way to transport gas from new wells to consumers, and that the wells would not have been developed absent the pipeline project. But Birckhead also suggests that if plaintiffs are able to muster evidence showing the number and location of new wells that will be drilled as a result of the pipeline project, FERC might also have to consider the upstream indirect effects of the pipeline.

Other NEPA claims

Groups opposing interstate pipelines have also used other portions of NEPA—beyond indirect effects—to argue that FERC acted arbitrarily and capriciously in approving the pipeline because it did not adequately consider NEPA factors. These groups were successful in Cowpasture River Preservation Association because the Forest Service, which was a cooperating agency for FERC’s NEPA review, made a variety of objections to the environmental impact statement concerning FERC’s failure to adequately consider off-forest routes, erosion, and other impacts, but then promptly reversed its objections without explanation.

NEPA claims that challenge FERC’s selection of a particular site for a pipeline or associated infrastructure tend to be less successful. For example, when petitioners argued that under NEPA, FERC should have approved a pipeline loop instead of a compressor station in Myersville, Maryland, this claim failed. The court emphasized that NEPA does not require FERC to select what petitioners believe is the environmentally superior alternative. Myersville Citizens for a Rural Community v. FERC, 783 F.3d 1301, 1324 (D.C. Cir. 2015).

Violations of other environmental statutes

Beyond NEPA, groups opposed to natural gas pipelines increasingly argue that pipeline construction directly violates the provisions of substantive environmental statutes. For example, this year the U.S. District Court for the Western District of Texas considered whether to preliminarily enjoin construction of a Kinder Morgan pipeline on the basis of alleged violations of the Administrative Procedure Act, NEPA, and the Endangered Species Act. The court denied the preliminary injunction but cautioned Kinder Morgan that, given its apparent violation of the biological opinion and incidental take statement under the Endangered Species Act, it could be subject to future civil and criminal liability for any incidental takes of species. The court also warned that the U.S. Fish and Wildlife Service’s allowance of land clearing for the pipeline past the hard deadline for clearing established in the biological opinion would likely be arbitrary. City of Austin v. Kinder Morgan Texas Pipeline, LLC, Order, 1:20-CV-138 RP (W.D. Tex. Mar. 19, 2020).

Conclusion

As the rush to build new pipelines continues—particularly in relatively populous areas along the Eastern Seaboard—more challenges are certain. But the results of these challenges are far from certain. The courts have largely eschewed categorical rules for or against FERC victories, instead conducting case-by-case review of the particular circumstances and facts on the record.

Hannah Wiseman

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Hannah Wiseman is the Attorneys’ Title Professor at the Florida State University College of Law.