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Court Grants Preliminary Injunction to Pipeline Company, Precludes EHB Review of Permits

A federal judge has granted a preliminary injunction in favor of Tennessee Gas Pipeline, LLC, precluding two environmental groups from bringing a permit challenge before the Pennsylvania Environmental Hearing Board, the Scranton Times-Tribune reports.  Tennessee Gas filed a complaint and sought the injunction to block attempts by the environmental groups to seek review of permits associated with the company’s Northeast Upgrade Project.  In an order issued February 5, 2013, District Judge Robert Mariani concluded that Natural Gas Act precluded the Environmental Hearing Board from reviewing permits issued by the Pennsylvania Department of Environmental Protection to Tennessee Gas under the Clean Water Act and the Clean Streams Law. The Delaware Riverkeeper Network and the Responsible Drilling Alliance brought an appeal before the Environmental Hearing Board in December 2012 seeking review of permits.

The court noted that two permits were issued under the Clean Water Act and one permit was issued under the state Clean Streams Law, but concluded that the three were interrelated such that review by a federal appellate court alone rather than two separate tribunals was appropriate. The court also concluded that the Natural Gas Act precluded the Environmental Hearing Board from reviewing the DEP’s permitting decisions prior to an appeal to a federal appellate court.   The court’s analysis focused on the application of Section 717r(d)(1) of the Natural Gas Act, which provides that “the United States Court of Appeals for the circuit in which a facility . . is proposed to be constructed, expanded, or operated shall have original and exclusive jurisdiction over any civil action for the review of an order or action of a Federal agency … or state administrative agency acting pursuant to Federal law to issue, condition, or deny any permit … required under Federal law … .”