DC Circuit denies landowners' bid to block Jordan Cove, Pacific Connector

Washington — The DC Circuit Court of Appeals has declined to put an early block on the federal authorization for the Jordan Cove LNG project and Pacific Connector Pipeline as requested by landowners.

Contending that they were at risk of having their land taken during a global pandemic for a pipeline unlikely to ever be built, the landowners in July sought summary vacatur of the Federal Energy Regulatory Commission certificate authorization or else a stay pending review. FERC in March authorized the 7.8 million mt/year LNG export terminal in Coos Bay, Oregon, and the related 229-mile, 1.2 million Dt/d pipeline.

In a brief order Oct. 6, the court found a summary vacatur was not possible because the merits of the parties' positions "are not so clear as to warrant summary action" (Deborah Evans, et al., v. FERC, 20-1161).

Landowners had argued a simple vacatur was needed because FERC's certificate order and rehearing order flouted the court's own decision in a case involving the NEXUS Gas Transmission project in which the court asked for more explanation as to why agreements with shippers for export should count toward a finding of public convenience and necessity.

In its new order, the DC Circuit also found the petitioners failed to satisfy the stringent requirements for a stay pending court review. But the court left open the door for future action, saying the denial is not without prejudice to renewal of a stay motion in the event that actions to condemn petitioners' property becomes imminent.

The landowners had argued a stay was warranted because they faced the prospect that their land could be condemned and permanent easements imposed, potentially in a matter of weeks. Their filing cited examples to show how quickly district courts had sometimes granted immediate possession of land through preliminary injunctions.

FERC argument

FERC, however, countered that landowners have not demonstrated irreparable, immediate injury because even if the pipeline were to initiate eminent domain proceedings, it would be at least three to four months, and likely six or longer, before a preliminary injunction could issue.

Jordan Cove and Pacific Connector further argued that developers' latest plans show pipeline construction is not slated to start until about three years after received an authorization order — or 2023, "long after this court will have adjudicated landowners' appeals."

In arguing against the motion to vacate the certificate order, FERC said the record established that the pipeline was needed and would provide a domestic public benefit. It also said exports would give Rocky Mountain producers a needed new option to ship and sell their gas, boosting the domestic economy.

MVP legal battles

Separately, Mountain Valley Pipeline is facing environmentalists' renewed efforts to stay authorizations in appeals court. Sierra Club and others are urging the 4th US Circuit Court of Appeals to stay recently reinstated water crossing verifications issued by the US Army Corps of Engineers' Huntington and Norfolk districts for the 303-mile, 2 Bcf/d project.

Construction of some sections of the MVP project has been stalled amid litigation over endangered species, stream crossings and permissions to cross national forest land. The latest court actions come as MVP is also asking FERC to lift a stop-work order on the project, which would connect Appalachian Shale gas to Mid-Atlantic demand centers.

In the requests for stays of the new water crossing verifications, the Sierra Club argued the reinstatements are unlawful because the Army Corps failed to comply with the Endangered Species Act when it issued the general permit frequently used by pipelines known as Nationwide Permit 12 in 2017. They also contended MVP was ineligible to use NWP 12 because the Army Corps' effort to remove a permit condition initially required by West Virginia was ineffective. At issue was a prior West Virginia condition that projects like the pipeline to have an individual Section 401 water quality certification. The environmental group argued an Army Corps division engineer lacked authority to modify NWP 12 and was barred from replacing the condition with a relaxed condition.

MVP has until Oct. 9 to respond to the groups' motions (Sierra Club v. U.S. Army Corps of Engineers, 20-2039 and 20-2042).