One NEXUS Pipeline Lawsuit Gets Tossed, Another Keeps Going

From Vorys Energy & Environmental Law Blog:

On February 21, 2019, the Sixth Circuit Court of Appeals dismissed a petition for review of air permits issued by Ohio EPA for two compressor stations to be constructed along the NEXUS pipeline in Ohio. The Court dismissed the petition for review for lack of jurisdiction, holding the environmental groups that filed the petition for review failed to establish standing. In reaching its decision, the Court highlighted that “petitioners bore the burden of establishing the irreducible constitutional minimum of standing” which requires petitioners demonstrate that they (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. The Court also noted that a citizen group can establish standing on behalf of their members, but such “representational standing” requires the group to show that “its members would otherwise have standing to sue in their own right.” 

The Court held that petitioners failed to demonstrate the first element of standing – i.e. injury in fact. To demonstrate injury-in-fact, petitioners were required to “make specific allegations establishing that at least one identified member had suffered or would suffer harm.” The Court highlighted that petitioners could not rest on bare allegations to establish a concrete injury. Rather, petitioners were required to “present specific facts through citations to the administrative record or affidavits or other evidence” that at least one member of each petitioner group would suffer a concrete particularized harm from the compressor stations’ emissions.

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And from Law 360:

Nexus Gas Transmission LLC has shot back at Oberlin, Ohio’s challenge to FERC greenlighting a $2.1 billion pipeline, telling the D.C. Circuit there was plenty of need for the natural gas project and that the Federal Energy Regulatory Commission had properly scrutinized it. 

Nexus on Friday rebutted allegations by the city and the Coalition to Reroute Nexus that there wasn’t a real need for the pipeline — which is now in operation — because a significant portion of its capacity wasn’t under contract. Instead, available capacity provided a needed alternative for the market that enhanced competition, which is a public benefit, according to the company’s brief. 

“Petitioners argue that the amount of capacity subject to precedent agreements — 59 percent — is insufficient to support FERC’s finding of public need,” the Nexus brief said, noting that FERC cited “providing competitive alternatives” as a public benefit. “In order for a pipeline to be an available competitive alternative, it must have available capacity; thus, the commission’s policy of encouraging competition requires available capacity on new pipelines to provide an alternative to existing pipelines.”

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