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Permit upheld for Transco's Atlantic Sunrise expansion, but judge blasts FERC

The U.S. Appeals Court for the District of Columbia Circuit backed the Federal Energy Regulatory Commission's decision to grant a certificate to Williams Cos. Inc. subsidiary Transcontinental Gas Pipe Line Co. LLC for its 1.7-Bcf/d Atlantic Sunrise natural gas pipeline project, but one judge said the FERC process for treating landowner petitions "is not right."

The D.C. Circuit said challenges by Allegheny Defense Project and other environmental groups and by landowners did not overcome the court's standards of deference to agency review and did not overcome legal precedent. It rejected their petitions for review of the FERC approval of Atlantic Sunrise.

Among other things, the court said FERC in its project review "already took the steps" to consider climate change impacts that the environmental groups and landowners had demanded in their petitions.

The court also said legal precedent brought down claims that FERC had denied due process to the petitioners. The petitioners had argued that FERC had done this by authorizing construction of the pipeline project while their rehearing petitions were still pending at the commission. The court said the environmentalists had not proved they had been deprived of liberty or property, as they must to make a due process claim. The court said the landowners had not proved that the commission had acted improperly in following its pipeline review process.

One of the judges, Circuit Judge Patricia Millett, issued a statement that concurred with the court's decision but slammed the FERC process. "As for the homeowners' due-process claim, I recognize that circuit precedent ties my hands," the judge said. "But the commission has twisted our precedent into a Kafkaesque regime."

"Under it, the commission can keep homeowners in seemingly endless administrative limbo while energy companies plow ahead seizing land and constructing the very pipeline that the procedurally handcuffed homeowners seek to stop," Millett continued. "The commission does so by casting aside the time limit on rehearing that Congress ordered — treating its decision as final enough for the pipeline companies to go forward with their construction plans, but not final for the injured landowners to obtain judicial review. This case starkly illustrates why that is not right."

According to the landowners and environmental groups, FERC denied their petitions for rehearing nine months after their request and denied motions to stop construction nearly six months after the developers started building. (U.S. Appeals Court for the District of Columbia Circuit docket 17-1098)

The almost $3 billion Atlantic Sunrise expansion went into service in October 2018. FERC approved the project, designed to transport gas from the Marcellus Shale to the Transco mainline for further transportation to mid-Atlantic and Southeast markets, in February 2017.

The Atlantic Sunrise project included about 200 miles of gas pipeline, including about 185 miles of new pipeline in Pennsylvania, 11 miles of pipeline loop in Pennsylvania, and 2.5 miles of replacement pipeline in Virginia. The project also included modifications to facilities in Maryland, North Carolina and South Carolina to allow for bidirectional flow. (FERC docket CP15-138)

Several parties, including the Delaware Riverkeeper Network and a group of Roman Catholic nuns, have tried to bring challenges against the expansion of the Transco system, but most of these have failed in federal court and have not made it into the U.S. Supreme Court.