The U.S. Court of Appeals for the Ninth Circuit late Tuesday denied the Center for Biological Diversity's (CBD) emergency motion to prevent construction of the Ruby Pipeline.

The CBD, based in Portland, OR, requested the injunction in August (see Daily GPI, Aug. 23). The lawsuit challenged the Bureau of Land Management's (BLM) decision to issue rights of way on federal lands for the project and challenged the U.S. Fish and Wildlife Service's (FWS) review of the project's impacts on endangered or threatened species (No. 10-72356).

The BLM and FWS on Aug. 25 filed their response, and El Paso Corp. acted as an intervenor in the case, said spokesman Richard Wheatley.

"We were an intervenor in the suit and requested to be so we could assist in preserving an accurate record for the court regarding the permitting process," Wheatley said.

El Paso is building the 42-inch diameter gas pipeline with partner Global Infrastructure Partners to carry natural gas from the Rocky Mountains to West Coast markets.

The federal agencies and El Paso lawyers noted in their response that to obtain the "extraordinary remedy" of an injunction pending appeal, the petitioner had to "clearly" establish four elements that:

Injunctive relief, said the defendants, may not be granted "where there are merely serious questions on the merits...or only a 'possibility' of harm...

"CBD has not met its burden under any of the prongs of the familiar injunctive-relief standard and therefore its emergency motion must be denied."

Wheatley told NGI that even though Ruby has "amassed one of the largest, most comprehensive dockets at the FERC, last-minute environmental appeals were generally expected." The Federal Energy Regulatory Commission cleared Ruby's final regulatory hurdle and was given the green light to begin construction early last month (see Daily GPI, Aug. 3). The final environmental impact statement (EIS) was issued in January.

"Ruby went through a full two years of permitting before the final EIS was issued in January 2010," said Wheatley. "The CBD did comment and had more than ample opportunity to have its concerns reviewed throughout the course of the permitting process leading up to issuance of the final EIS."

Despite the protests, "construction is, indeed, proceeding," said the El Paso spokesman. The company began work on July 31 and a spring 2011 in service date remains in place. "Work is under way at various points along the 680-mile right of way, at the four compressor station sites, and at the large, 600-person work camp at Vya, NV."

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