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Federal Court Halts Construction on Section of Nexus in Ohio

A federal court has ordered construction halted on an eight-mile stretch of the Nexus Gas Transmission pipeline in Northeast Ohio until it can review the project’s 401 Water Quality Certification that was issued by the Ohio Environmental Protection Agency (OEPA). 

The U.S. Court of Appeals for the Sixth Circuit granted the City of Green’s motion to stay construction, finding that its petition for review is likely to succeed and that construction could cause irreparable harm if allowed to go forward. The stay only stops construction on the eight-mile section in the city, while the rest can continue as planned.

Green filed its petition last month, arguing that the pipeline is harmful for the environment, including wildlife habitats. The court said the city has raised “strong arguments” about the validity of OEPA’s WQC. Both the OEPA and Nexus opposed the motion to stay.

The city argues that the agency did not follow internal procedure during its WQC review, failing to conduct a complete wetland analysis when it improperly evaluated plant life outside of the growing season. Because the WQC review was unreliable, the court found, the project could harm the environment.

Green has opposed the projects for years, filing for a reroute at FERC two years ago that identified wetlands, abandoned mines, parks and open space areas that could be threatened by the project’s path.

Construction has been halted until the court can rule on Green’s petition. Oral arguments have not been scheduled, but the case has been expedited.

The Federal Energy Regulatory Commission issued a certificate for the project in August. Construction started last month. Nexus is still expected to enter service in 3Q2018. The 1.5 Bcf/d project would deliver Marcellus and Utica shale natural gas to markets in the Midwest and Canada. The bulk of the 257-mile pipeline would be constructed in Ohio and move gas to Michigan where it would send volumes north and west.

The Sierra Club filed earlier this month for an emergency motion to stop all Nexus construction, but it was forced to drop that challenge after a declarant supporting its case sold property to the project.

Nexus, a joint venture of Enbridge Inc. and DTE Energy Co., is not alone. Several other pipeline projects, particularly in the Northeast, are facing similar challenges. Environmental groups have also targeted FERC, charging the Commission with rubber-stamping projects at the expense of the public.

The New Jersey Conservation Foundation filed a lawsuit last week in the U.S. District Court for the District of New Jersey arguing that FERC’s approval process violates the Fifth Amendment by failing to adequately ensure that the private land used for pipelines serves a public use.

The foundation has asked the court to declare that the Commission  must consider the environmental impacts of a pipeline more closely before it authorizes a project. It also wants the court to declare that FERC cannot accept private shipping contracts as proof to justify market demand for pipelines. It was just the latest lawsuit filed to challenge the Commission’s authority. 

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