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Delaware Riverkeeper Challenging FERC in Court Over PennEast

The Delaware Riverkeeper Network (DRN) is seeking a federal court order that would force FERC to respond to the organization’s request that the Commission rehear the January certificate authorizing the PennEast Pipeline.

A final order, DRN said, is “necessary to allow the organization to affirmatively challenge” the Federal Energy Regulatory Commission’s certificate for the project. The organization, which has repeatedly opposed Appalachian infrastructure projects, also filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit challenging the certificate order.

Pipeline opponents have had limited success with similar efforts in federal courts. Filings to stay construction pending rehearings before FERC have failed, for example, in cases involving the Atlantic Coast Pipeline, Nexus Gas Transmission and the Atlantic Sunrise project, to name a few.

The courts have generally been unwilling to entertain appeals until the FERC rehearing process has been completed.

The Commission certificated PennEast last January. Days later, DRN filed a motion to stay the order pending a rehearing request that was also filed. FERC in February tolled the requests in order to give it more time to make a decision. But DRN, as others have done, said such tolling orders are ambiguous, claiming that they have thrown the organization’s efforts into “legal limbo.”

Pennsylvania has issued the project’s Section 401 water quality certification under the federal Clean Water Act, but New Jersey has not yet acted on any authorizations. PennEast would also need other regulatory approvals, such as those from the Delaware River Basin Commission and the U.S. Army Corps of Engineers.

The system would move more than 1 Bcf/d of gas from Northeast Pennsylvania to New Jersey. About one-third of the 120-mile pipeline would be in New Jersey. The project is targeting a 2019 in-service date.

The New Jersey Department of Environmental Protection has also requested a rehearing and recisission of the PennEast certificate, arguing that the project’s environmental review failed to meet the National Environmental Policy Act. The agency also filed to stay PennEast’s authority to condemn properties in the state while its rehearing request is pending. FERC tolled the request in what the state called a stall tactic.  

PennEast is owned by Enbridge Inc. (20%), Red Oak Enterprise Holdings Inc. (20%), NJR Pipeline Co. (20%), SJI Midstream LLC (20%) and UGI PennEast LLC (20%).

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