Tennessee Gas Pipeline has filed a complaint in federal court in Scranton, PA, to enjoin the Pennsylvania Environmental Hearing Board (EHB) from holding a hearing Monday (Jan. 14) to consider environmentalists’ petitions to block the pipeline’s Northeast Upgrade Project.

The pipeline, which seeks both preliminary and permanent injunctions, asks the district court to direct the EHB to dismiss the pending appeals and to order the nonprofit watchdog groups, Delaware Riverkeeper Network and Responsible Drilling Alliance, to stop pursuing relief before the board.

The EHB hearing is “preempted by federal law” because the permits at issue were required by the Federal Energy Regulatory Commission and/or because consideration of the permits by the Pennsylvania board would “unreasonably delay construction” of the project in violation of an order in May by FERC to approve the Northeast Upgrade expansion, argued the Houston-based pipeline, which is a subsidiary of Kinder Morgan Operating LP.

The Northeast Upgrade would expand Tennessee’s existing 300 Line system in Pennsylvania and New Jersey to provide an additional 636,000 Dth/d of Marcellus Shale gas to Northeast markets. Tennessee in November 2011 placed into service an initial expansion and upgrade of the 300 Line (see Daily GPI, Nov. 2, 2011).

An injunction of the EHB hearing “is necessary to prevent immediate and irreparable harm to Tennessee and project shippers, who have contracted for all of the additional gas transportation capacity to be created by the project,” Tennessee told the U.S. District Court. The EHB has jurisdiction to hear appeals of actions taken by the Pennsylvania Department of Environmental Protection (DEP).

Tennessee’s lawsuit names the Delaware Riverkeeper Network, Responsible Drilling Alliance, the Pennsylvania EHB and individual board members as defendants, arguing that they are interfering with Tennessee’s construction of the natural gas pipeline in Pennsylvania’s Bradford, Wayne and Pike counties, and in New Jersey. Tennessee alleges that Delaware Riverkeeper and the other defendants are attempting to use the Pennsylvania EHB appeal process to sidestep federal law.

The opponents of the pipeline project have asked the EHB to supersede three permits from the Pennsylvania Department of Environmental Protection related to the Tennessee project, which includes constructing close to 40.5 miles of 30-inch diameter gas pipeline, as well as modifications and upgrades to existing compressor stations in Pennsylvania and New Jersey to meet the growing gas demand in the Northeast.

The project would create the capacity to transport 636,000 Dth/d of additional gas. Tennessee was given the notice to proceed with the project on Dec. 14.

FERC vests exclusive jurisdiction for review of its decisions with either the U.S. Court of Appeals for the District of Columbia Circuit or with the circuit court in which the project at issue is located — here, that would be the Third Circuit, not the EHB. Such a review only may occur 60 days after FERC has ruled on pending requests for rehearing. The request to rehear the agency’s decision on the Tennessee project still is pending before the Commission, so the right to seek appellate review of agency is not yet at hand.

According to Tennessee, the project must be completed and placed into service by Nov. 1 to satisfy its contractual commitments to project shippers and to meet the demands for natural gas that peak at that time of the year in the region.

“The project construction schedule is carefully crafted to comply with a number of environmental permits and clearances, many of which allow only limited time windows to perform certain critical construction activities,” Tennessee said in its complaint. “Missing these deadlines would cause Tennessee to miss the Nov. 1, 2013 project completion deadline.”

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