Delaware Riverkeeper Network v. United States Army Corps of Engineers
869 F.3d 148
3rd Cir.2017Background
- Tennessee Gas sought federal and state approvals to build the 12.9-mile Orion pipeline loop in Pennsylvania to transport 135,000 dekatherms/day; ~99.5% of the loop parallels existing pipeline right-of-way.
- FERC served as lead NEPA agency and issued an Environmental Assessment and certificate finding no significant impact; the Corps reviewed a Section 404 Clean Water Act permit application and issued the permit the same day as FERC’s certificate.
- Riverkeeper challenged the Corps’ permit, arguing the Corps acted arbitrarily and capriciously by rejecting a compressor-station ("compression") alternative that would avoid most waterbody/wetland crossings.
- Tennessee Gas’s submissions and FERC’s draft EA discussed compression, noting compression would have permanent aboveground impacts (40 acres/site, permanent clearing, light/noise/air emissions, GHGs) and higher operating costs, while the looping project’s impacts were mostly temporary and restorable.
- The Corps incorporated the record, identified compression as considered, and concluded compression would have “other significant adverse environmental consequences” (permanence of impacts), so the Corps favored the looping project whose impacts were largely temporary and restorable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Riverkeeper waived the compression claim | Riverkeeper contends agency failed to consider compression; claim preserved because parties participated | Corps/Tennessee Gas argue Riverkeeper did not raise compression before FERC/Corps and thus waived | No waiver: compression was before the agencies via Tennessee Gas and FERC draft; Corps had independent knowledge and Corps comment period timing made Corps-specific challenge practicable |
| Whether Corps defined project purpose too narrowly (basic purpose) to exclude compression | Corps narrowed basic purpose to "construct natural gas pipeline loops," which improperly foreclosed alternatives | Corps/FERC defined overall and basic purposes correctly; overall purpose allowed consideration of compression | Rejected: basic vs overall purpose distinction dispositive; any error harmless because Corps considered compression and did not reject it solely on basic-purpose grounds |
| Whether the Corps failed to consider the compression alternative | Riverkeeper says Corps ignored compression (not in FERC final EA) | Corps relied on Tennessee Gas application and other record materials; Corps expressly referenced compression in its findings | Rejected: Corps considered compression—Corps used full record (not only FERC EA) and cited compression in its analysis |
| Whether Corps unlawfully rejected compression under 40 C.F.R. § 230.10(a) (practicable, less aquatic impact, no other significant adverse consequences) | Compression is practicable and would have less aquatic impacts; Corps improperly concluded compression had other significant adverse effects without adequate findings | Corps argues compression would cause permanent aboveground impacts (vegetation clearing, light, noise, GHGs) that are significant; Corps reasonably preferred temporary/restorable impacts of looping | Rejected: Court finds Corps reasonably concluded compression’s permanent impacts were sufficiently significant to preclude it under § 230.10(a); practicability and aquatic-impact prongs met but ‘‘other significant adverse environmental consequences’’ prong supports Corps’ decision; agency judgment entitled to deference |
Key Cases Cited
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (establishes NEPA "hard look" requirement)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (arbitrary and capricious review standard)
- Dep't of Transp. v. Pub. Citizen, 541 U.S. 752 (prudential waiver / requirement to raise issues in administrative comments)
- Burlington Truck Lines v. United States, 371 U.S. 156 (agency must connect facts and choice)
- Sierra Club, Inc. v. Bostick, 787 F.3d 1043 (exceptions to prudential waiver when issue otherwise before agency)
- Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (Corps' role under CWA Section 404 and relation to EPA Guidelines)