DELAWARE RIVERKEEPER NETWORK; MAYA VAN ROSSUM, the Delaware Riverkeeper, Petitioners
UNITED STATES ARMY CORPS OF ENGINEERS, Respondent Tennessee Gas Pipeline Co., Intervenor
July 13, 2017
Petition for Review from the United States Army Corps of
J. Stemplewicz [ARGUED] Delaware Riverkeeper Network Counsel
Chilakamarri [ARGUED] United States Department of Justice
Environment & Natural Resources Division, Michael T. Gray
United States Department of Justice Army Corps of Engineers,
David C. Shilton United States Department of Justice
Environment & Natural Resources Division Counsel for
S. Goodwin Saul Ewing, Patrick F. Nugent, John F. Stoviak
[ARGUED] Elizabeth U. Witmer Saul Ewing Counsel for
Before: SMITH, Chief Judge, NYGAARD, and FUENTES, Circuit
OPINION OF THE COURT
Gas Pipeline Co. ("Tennessee Gas") submitted
applications to several federal and state agencies seeking
approval to build an interstate pipeline project. One such
agency is the United States Army Corps of Engineers,
 which administers certain provisions of
the Clean Water Act. The Corps issued a permit approving the
project. The petitioners, Maya van Rossum and Delaware
Riverkeeper Network (collectively, "Riverkeeper"),
challenge that decision on the ground that the Corps acted
arbitrarily and capriciously by rejecting a
conclude that the Corps considered the compression
alternative but rejected it for reasons supported by the
record. While the compression alternative would disturb less
land, its impact would be mostly permanent. The pipeline
project would disturb more land, but its impact would be
mostly temporary. In making a policy choice between those
environmental tradeoffs, the agency's discretion was at
its apex. We will therefore deny the petition for review.
issue is the Orion Project-12.9 miles of pipeline
looping that would transport an
additional 135, 000 dekatherms per day of natural gas through
Pennsylvania. Approximately 99.5% of the new pipeline would
run alongside existing pipelines. According to Riverkeeper,
construction will lead to deforestation, destruction of
wetland habitats, and other forms of environmental damage.
Riverkeeper asserts that such damage can be avoided by
building or upgrading a compressor station. "Compressor
stations . . . us[e] gas- and electric-powered turbines to
increase the pressure and rate of flow at given points along
the pipeline's route." Del. Riverkeeper
Network v. Sec'y Pa. Dep't of Envtl. Prot.,
833 F.3d 360, 369 (3d Cir. 2016). Building or upgrading a
compressor station would increase the amount of natural gas
transported through existing pipelines and thus avoid any
need to build pipeline looping.
to Riverkeeper's concerns, the agencies concluded that
the Orion Project would result in "minimal" and
"temporary" environmental impact. Of the 12.9 miles
of pipeline looping, fewer than 2 miles would cross wetlands
or water bodies. The pipeline would be buried 2-3 feet
beneath the ground, and all disturbed areas would be restored
to their original elevations and contours with no net loss of
wetlands. However, nearly five acres of forested wetlands
would be de-forested and converted into emergent wetlands.
The compression alternative, by contrast, would require
constructing one or more permanent fixtures-causing permanent
deforestation as well as light, air, sound, and greenhouse
that initial background in mind, we next set forth a brief
overview of the administrative scheme and then describe how
that process unfolded in this case.
the Natural Gas Act of 1938, the Federal Energy Regulatory
Commission ("FERC") is the "lead agency"
for evaluating interstate pipeline projects. 15 U.S.C. §
717n(b). As part of that role, FERC performs a technical
environmental analysis pursuant to the National Environmental
Policy Act ("NEPA"). Id.
requires FERC to take a "hard look" at the
environmental impact of the proposed project. Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 350
(1989). If the project involves a "major Federal
action" that would "significantly affect the
quality of the human environment, " FERC must prepare a
detailed Environmental Impact Statement. 42 U.S.C. §
4332(C). Otherwise, FERC need only prepare a concise
Environmental Assessment. 40 C.F.R. §§ 1501.3,
condition of FERC's approval, the applicant is required
to obtain any additional state or federal licenses required
by law. For example, because the Orion Project would
discharge "dredged or fill material" into the
"waters of the United States, " Tennessee Gas was
required to obtain a permit under Section 404 of the Clean
Water Act. 33 U.S.C. §§ 1344(a), 1362(7).
United States Army Corps of Engineers reviews applications
for Section 404 permits. In doing so, the Corps applies the
so-called Section 404 Guidelines ("the Guidelines")
issued by the Environmental Protection Agency. See
33 C.F.R. § 320.4. See generally Coeur Alaska, Inc.
v. Se. Alaska Conservation Council, 557 U.S. 261 (2009).
Among other things, the Corps may not issue a permit where
there is a "practicable alternative" with less
adverse impact on the aquatic ecosystem, "so long as the
alternative does not have other significant adverse
environmental consequences." 40 C.F.R. § 230.10(a).
performing its alternatives analysis, the Corps may rely on
the environmental report prepared by FERC pursuant to NEPA.
The agencies memorialized their cooperative relationship in a
2005 Memorandum of Understanding, which states that the Corps
will "use the FERC record to the maximum extent
practicable and as allowed by law . . . . [T]he Corps will
give deference, to the maximum extent allowed by law, to the
project purpose, project need, and project alternatives that
FERC determines to be appropriate for the project." JA
Tennessee Gas's application.
October 9, 2015, Tennessee Gas submitted an application to
FERC for approval of the Orion Project. Its application
included an Environmental Report, which discussed and
rejected compression alternatives. Tennessee Gas explained
that building compressor stations would require Tennessee Gas
"to obtain approximately 40-acres per site (total of 80
acres)." JA 408. Building compressor stations would also
require "permanent vegetation clearing from the area in
order to install permanent access roads, fencing, buildings
and other appurtenance equipment, " and would create
"light pollution and noise impacts and may also become a
source of [greenhouse gas] emissions." Id. But
with the Orion Project, "the new [right-of-way] will be
allowed to re-vegetate to minimize and mitigate possible
environmental impacts." Id. The report further
concluded that the "compression alternative would result
in higher Project operating and fuel costs."
December 3, 2015, FERC issued a Notice of Intent and
solicited public comments regarding the Orion Project. FERC
specifically requested comments on "reasonable
alternatives." JA 560. On June 10, 2016, the Corps
issued its own public notice of the Section 404 permit
FERC's draft Environmental Assessment.
2016, FERC circulated a non-public draft Environmental
Assessment to the Corps for internal comment. The draft
specifically considered and rejected a possible compression
alternative, as conveyed in a detailed chart. While the draft
Environmental Assessment concluded that compression would be
"technically feasible, " its "economic
efficiency" would be "lower" and it would
"require permanent land use conversion" and present
a new source of light, air emissions, and noise. JA 212. The
draft characterized compression's environmental impact as
"different, " "comparable, " and
"possibly lower" than the Orion Project. But
ultimately, the draft concluded that the aboveground
footprint of building a compression station is
"permanent, " whereas "the bulk of the Project
impacts are temporary (such as water body crossings) or
adjacent to the existing right-of-way." Id.
Final Environmental Assessment.
August 23, 2016, FERC published its Environmental Assessment
for public comments-requesting that comments "focus on
the potential environmental effects, reasonable alternatives,
and measures to lessen or avoid environmental impacts."
JA 239. For reasons that are not clear from the record, the
final Environmental Assessment omitted the draft's
analysis of the compression alternative. The final assessment
did, nonetheless, recommend a "finding of no significant
impact" because the Orion Project's "impacts on
water bodies and wetlands would be minor and temporary."
JA 340, 274, 278.
the publication of the Environmental Assessment, "[n]one
of the environmental comments received on the Orion Project
identified specific alternatives to the proposed looping
segments." JA 335. After publication, groups including
Riverkeeper commented on alternatives but never specifically
Corps received no public comments and received no requests
for a public hearing.
FERC Order Issuing a Certificate.
February 2, 2017, FERC published its Order Issuing a
Certificate, approving the Orion Project and issuing a
"certificate of public convenience and necessity."
15 U.S.C. § 717f(c). FERC explained that it
"evaluated alternatives to the Orion Project to
determine whether they would be reasonable and
environmentally preferable to the proposed project, "
and "affirm[ed] the conclusion in the [Environmental
Assessment] that no reasonable alternative would result in
significantly less environmental impacts and accomplish the
project's objective." JA 635.
Order also noted that "[w]hile Delaware Riverkeeper
presents general alternatives that would potentially result
in less impact, Tennessee's application and its response
to Delaware Riverkeeper's comments provide further
evidence that the Orion Project could not be satisfied by
relying on other transportation systems or looping,
compression, and route alternatives along
Tennessee's own system." JA 635 (emphasis added).
Considers and Issues a Section 404 Permit.
with the FERC process, the Corps reviewed Tennessee Gas's
application for a Section 404 permit. The Corps issued its
permit on the same date as FERC's order, February 2,
2017. The Corps incorporated the Environmental Assessment
into its findings-concluding that the water impacts would be
"temporary in nature" and the project would have a
"[n]egligible effect." JA 432-34. The Corps further
concluded that "there are no reasonable or practicable
alternatives" for which there would be no
"significant adverse environmental effects, " and