Environmental groups blast Tennessee over ‘cut-and-paste’ pipeline approval

CINCINNATI (CN) — State and federal agencies "committed nearly every cardinal sin" when they approved the 32-mile natural gas Cumberland Pipeline in Tennessee, environmental groups told an appeals court panel Tuesday.

The Sierra Club and Appalachian Voices petitioned the Sixth Circuit to invalidate permits granted by the Tennessee Department of Environment and Conservation and the U.S. Army Corps of Engineers, claiming the routing and excavation process for the 30-inch buried pipeline violated the Clean Water Act.

In October, the appeals court granted the groups' request for a stay pending the outcome of their appeal, which temporarily halted construction of the pipeline.

The court heard arguments in two cases Tuesday, one against the state of Tennessee and the other against the Army Corps of Engineers.

The Tennessee Gas Pipeline Co., or TGP, is the principal contractor on the project and intervened and argued in each case.

According to the environmental groups, the company intends to trench through at least 52 streams and wetlands and 62 "wet weather conveyances," and failed to consider trenchless alternatives, while the state agency refused to properly analyze the application.

"Although the department concluded that trenchless methods were the least environmentally impactful alternative, it stubbornly refused to evaluate whether those techniques were practicable at additional stream crossings on a site-specific basis. The department's decision was an administrative law nightmare: The agency cut and pasted large portions of the company's application without critical analysis," the groups say in their brief.

Tennessee pushes back against the "rubber stamp" claim in its brief, arguing the pipeline company answered all of its questions and the project also benefited from public feedback.

"The department required that Tennessee Gas comply with many stringent conditions which ensure pipeline construction will not violate water quality standards [and] considered information that Tennessee Gas provided regarding possible construction methods for waterbody crossings. It then included special conditions in the certification that require Tennessee Gas to use the least impactful practicable alternatives for each crossing," state attorneys said.

In its brief to the Sixth Circuit, the U.S. Army Corps of Engineers accuses the environmental groups of nitpicking the factual record and emphasize it "evaluated every waterbody crossing" and ensured the proposed pipeline would not violate water quality standards before issuing its permit.

Attorney Derek Teaney from the nonprofit group Appalachian Mountain Advocates in Lewisburg, West Virginia, argued on behalf of the environmental groups in both cases.

"The Tennessee Department of Environment and Conservation cut corners in its review process at every step, and all of these failures have consequences for Tennessee's streams," he told the panel.

U.S. Circuit Judge Karen Moore, a Bill Clinton appointee, asked Teaney how his clients could be sure the pipeline company failed to conduct a stream-by-stream analysis.

"The record is devoid of evidence," Teaney answered. "There is no estimate of cost of reasonable alternatives whatsoever."

U.S. Circuit Judge Eric Clay, another Clinton appointee, was skeptical and asked the attorney why every stream must be analyzed before a permit is granted.

"The applicant has to certify every discharge," Teaney said.

"The discharge is going to change from day to day. If that's going to be the stumbling block, you could never do anything. It's not a static environmental situation," Clay responded.

Senior Assistant Attorney General Wilson Buntin argued on behalf of Tennessee, and was asked by Moore whether the department conducted stream-by-stream analysis during its approval process.

"The department reviewed the materials submitted by TGP in its application," Buntin said.

Attorney David Super from the Bracewell firm in Washington provided more clarity when he argued on behalf of TGP.

He said his client submitted over 250 pages of crossing-by-crossing analysis, in addition to what was included in its application, all of which was used to determine that the "dry cut" crossing method was the most practicable.

"Sierra Club has come up with their platonic idea of what analysis is sufficient and then in the real world, there is never enough," Super told the court. "There's an assumption by Sierra Club that TGP is going to violate the law, but TGP has to use the least impactful means."

Moore asked Teaney about the documentation cited by the pipeline company's attorney during his rebuttal.

"There is some basic information, but it was gathered to determine whether they needed a permit at all, not to analyze the factors for least impactful practicable alternatives to dry cut," Sierra Club's attorney said.

When Teaney mentioned the lack of cost analysis by TGP and the state, Clay said: "You're just making generalized statements about cost, which isn't very helpful. You're making a lot of conclusory statements without the data."

"Only because the applicant didn't provide the data," Teaney responded.

Attorney Rebecca Jaffe from the U.S. Department of Justice argued on behalf of the Army Corps of Engineers and emphasized the current plan will not disrupt the environment in a significant way.

"The impact is minimal and almost all of it is temporary," Jaffe said. "There are no practicable alternatives to the pipeline. Of the 103 crossings, 56 are under 5 feet wide and 52 of those are ephemeral. That is really key because it means tunneling is not practicable."

The pipeline company's attorney bolstered the federal government's position during his argument in the second case and reiterated that only .03 acres of land would be permanently affected by the pipeline.

"There will be zero loss of wetlands and no permanent impacts to Tennessee streams," Super said.

U.S. Circuit Judge Amul Thapar, a Donald Trump appointee, rounded out the panel, which did not set a timetable for its decision.

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