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Delaware Riverkeeper Network mounts legal challenges to Millennium upgrade

Close on the heels of winning US Federal Energy Regulatory Commission approval for its Eastern System Upgrade, Millennium Pipeline is facing legal
challenges to the project, which would add 223 MMcf/d of capacity at the eastern end of its system in New York.

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The project would increase capacity along the constrained portion of Millennium's system, specifically from the Corning Compressor station in Steuben County to an interconnect with Algonquin Gas Transmission at Ramapo in Rockland County.

The Delaware Riverkeeper Network on Friday filed a petition for review in the 2nd US Circuit Court of Appeals of a New York State Department of Environmental Conservation general stormwater permit for the project. It also asked FERC to rethink its certificate order for the project and filed a motion for a stay of construction pending that review of the rehearing request.

The action comes as FERC-certificated pipeline projects appear to be facing increasing stay requests in court, with some recent success. The 2nd Circuit granted, at the request of the DEC, an administrative stay on another Millennium project, the Valley Lateral, as the agency fights a FERC order finding the state's Section 401 Clean Water Act permit waived for the project because of the time the DEC took to make a decision on the permit. Oral arguments will be heard Tuesday related to that stay.

Other recent stays include the 6th US Circuit Court of Appeals pause of an eight-mile segment of the 256-mile, 1.5 Bcf/d NEXUS Gas Transmission project. The City of Green, Ohio, requested a stay while the court considers its objection to a water permit issued by the state Environmental Protection Agency.

Transcontinental Gas Pipe Line's 196.5-mile, 1.7 Bcf/d Atlantic Sunrise project also briefly faced an administrative stay, although the Circuit Court of Appeals for the District of Columbia lifted it shortly after it was issued.

Maya van Rossum, leader of the Delaware Riverkeeper Network, said if FERC grants a notice to proceed on the Eastern System Upgrade, the environmental group will ask the court to stay that permission, and is hopeful the courts are becoming more open to granting such pauses pending litigation.

"While, historically, the courts have not been good about granting such requests, we believe that, with all of the pipeline litigation the justices in various federal courts have experienced, that they are now understanding the importance of providing such protection," she said.

"To date, often, pipelines have been allowed to advance during the pendency of litigation or while FERC has left people in legal limbo through the use of tolling orders, and as a result even when there is a legal victory it comes too late to be meaningful in any other way than as precedent for the next pipeline battle," she added.

In response to the litigation, Michelle Hook, a spokesman for Millennium said: "Our state authorizations for this project were granted after a great deal of work and cooperation with the NYSDEC." She added that the environmental group had not yet provided the company with "any basis for their appeal to the 2nd Circuit of Millennium's coverage under this state permit."

In the case of ESU, the environmental group argues that FERC's review fell short because it should have considered its potential harm alongside what the group argues are interrelated projects, including the Valley Lateral and the power plant the Valley Lateral would serve. It also contends that part of the project exceeded the scale needed, an argument FERC rejected in its certificate order.

The ESU project entails a roughly 7.8-mile, 30- to 36-inch-diameter loop in Orange County, New York, known as the Huguenot Loop, two new 24,000-hp compressor stations in Sullivan and Delaware counties and other modifications to existing Millennium stations.

Millennium has precedent agreements with nine shippers, all of which are local distribution companies or municipalities, for about 91% of the capacity and is marketing the remaining 20,500 Dt/d, according to the FERC certificate order, issued late November 28.

(This version of the story has been updated to include Millennium's comment.)

--Maya Weber,

--Edited by Valarie Jackson,