Law360: Del. River Agency Changes Course, Will Review Gas Pipelines

Law360, Philadelphia (February 01, 2013, 3:55 PM ET) — In a reversal of an earlier ruling, the Delaware River Basin Commission agreed Wednesday to exercise its jurisdiction over two completed gas pipeline projects in Pennsylvania and New Jersey.
The decision, a victory for environmental group Delaware Riverkeeper Network, means that the DRBC could require Tennessee Gas Pipeline Co. LLC, a unit of Kinder Morgan Energy Partners LP and Columbia Gas Transmission Corp. to repair damages from the construction of the two pipelines.

But Tennessee Gas also received good news on Friday, when the Pennsylvania Environmental Hearing Board rejected the Delaware Riverkeeper Network’s appeal of three permits for its planned $400 million natural gas pipeline upgrade linking Pennsylvania and New Jersey.

“We consider both as being invaluable and indispensable,” said Maya Van Rossum, the Delaware Riverkeeper, in discussing the relationship of the decisions of the DRBC and the EHB. “But both entities have different goals, different breadth and different impact.”

According to Van Rossum, her organization first asked the Delaware River Basin Commission — which includes the governors of New York, New Jersey, Pennsylvania and Delaware — to review the TGP 300 line and Columbia 1278 line along with other pipelines proposed to pass through the Delaware River watershed in February 2012.

After the DRBC refused to review the pipelines in a letter in July, the Delaware Riverkeeper Network, supported by 52 organizations, petitioned the commission to exercise its jurisdiction over gas pipelines passing through the watershed in September.

Then, in December, without any prior notice or comment period, the DRBC rejected the petition but said it would take a second look at the TGP 300 line and the Columbia 1278 line, which had already been completed by that point. The TGP line links Pennsylvania and New Jersey, while the Columbia line runs across three counties in Pennsylvania, paralleling the Delaware River.

But in Wednesday’s reversal, the DRBC sent a letter to Van Rossum announcing that both projects were subject to commission review, and it would do so after the fact.

“We believe that the reversal on both of those pipelines accomplishes two things,” said Van Rossum. “The two pipeline projects have inflicted incredible amounts of harm, and this could force the pipeline companies to come back and do essential restoration, which reverses some of the harm. But also, we believe that when the DRBC gets out and takes a look at two lines, they will recognize wholeheartedly that the level of ground disturbance that these pipe projects inflict is so significant that it impacts the water resources of the basin.”

Van Rossum emphasized that the DRBC review is different from what any of the individual states in the watershed can do, as commission looks at pipeline projects both with regard to their impact across state lines as well as at the cumulative impact of the 13 pipeline projects proposed to cut through the river’s watershed.

But one such individual state body Friday delivered a favorable ruling for Tennessee Gas, as the Pennsylvania Environmental Hearing Board concluded that the Delaware Riverkeeper Network failed to show that it would be irreparably harmed by the issuance of three permits for the company’s Northeast Upgrade Project. The project entails the addition of stretches of 30-inch pipe alongside an existing 24-inch pipeline to increase capacity of natural gas extracted from shale in Pennsylvania for markets in the Northeast and will also extend into New Jersey.

The Delaware Riverkeeper Network, along with the New Jersey Highlands Coalition, also have a challenge to the project pending with the Federal Energy Regulatory Commission.

A spokesman from Kinder Morgan declined to comment on the matters because of pending litigation.

The environmental groups are represented by Jane P. Davenport, Karimah Schoenhut and Aaron Stemplewicz of the Delaware Riverkeeper Network and Jordan Yeager of Curtin & Heefner LLP.

Tennessee Gas is represented by Andrew Bockis, Pamela Goodwin and John Stoviak of Saul Ewing LLP.

The case is The Delaware Riverkeeper Network et al. v. Commonwealth of Pennsylvania Department of Environmental Protection et al., docket number 2012-196, before the Pennsylvania Environmental Hearing Board.

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