Pipeline Protests Shift From Courts to Direct Action

• Susan Phillips
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  Susan Phillips tells stories about the consequences of political decisions on people's every day lives. She has worked as a reporter for WHYY since 2004. Susan's coverage of the 2008 Presidential election resulted in a story on the front page of the New York Times. In 2010 she traveled to Haiti to cover the earthquake. That same year she produced an award-winning series on Pennsylvania's natural gas rush called "The Shale Game." She received a 2013 Alfred I. duPont-Columbia University Journalism Award for her work covering natural gas drilling in Pennsylvania. She has also won several Edward R. Murrow awards for her work with StateImpact. In 2013/14 she spent a year at MIT as a Knight Science Journalism Fellow. She has also been a Metcalf Fellow, an MBL Logan Science Journalism Fellow and reported from Marrakech on the 2016 climate talks as an International Reporting Project Fellow. A graduate of Columbia School of Journalism, she earned her Bachelor's degree in International Relations from George Washington University.

Two protestors in northeast Pennsylvania are trying to halt the clearing of trees to make way for an expanding natural gas pipeline in Pike County.
Allison Petryk and Alex Lotorto handcuffed themselves to a gate in the Delaware State Forest on Monday and Tuesday, blocking access to tree felling crews. The Tennessee Gas Pipeline Northeast Upgrade project would expand an existing 13,900-mile natural gas pipeline that begins in the Gulf of Mexico and serves the Northeast region. The expansion would add almost 40 miles of additional pipeline in Pennsylvania and New Jersey to transport Marcellus Shale gas to the lucrative East Coast market.
The protests follow a series of failed legal efforts to halt the project. Environmental activists say the expanded pipeline will scar the landscape, and cause irreparable harm to sensitive watersheds. The upgrade project includes loops around existing pipelines, traveling through wooded forests and across wetlands.
“The result is runoff and more pollution,” says Maya van Rossum with the Delaware Riverkeeper Network, a grassroots environmental group formed 25 years ago to protect the Delaware watershed. “But also a greater volume of water will be coming into our streams and causing downstream erosion.”
Van Rossum says drilling in the Marcellus Shale has led to at least 14 new pipeline projects completed or planned for the Delaware River watershed.
“The cumulative effect is very dramatic,” she says. “The pipeline companies tend to target open spaces that we all fought so hard to protect.”
The Delaware Riverkeeper Network has tried unsuccessfully to halt the project on several fronts. Building pipelines involves a complex state and federal regulatory permitting process. In the case of the Northeast Upgrade, the Tennessee Gas Pipeline Co. had to secure permits from both state and federal agencies. The state also reviews applications under the federal Clean Water Act. The Riverkeeper sued at the state and federal level to halt construction. At the same time, the organization urged the Delaware River Basin Commission to weigh in.
The Riverkeeper challenged Pennsylvania’s Department of Environmental Protection permits with the state Environmental Hearing Board. But the pipeline company went directly to the federal courts, arguing that because the DEP’s permits were issued under the federal Clean Water Act, the Riverkeeper’s challenge could not be heard by a state court.
Then the case took an interesting twist. The Pennsylvania Department of Environmental Protection under Secretary Michael Krancer joined the lawsuit on the side of the Riverkeeper, which had challenged the DEP’s decision.  Arguing that the state’s authority and processes should not be usurped, the DEP argued that the appeal of the permits it had issued should be heard initially by the Environmental Hearing Board.
DEP and the Riverkeeper lost, and a judge in the United States Middle District Court of Pennsylvania ruled in favor of the pipeline company. It was a precedent-setting ruling, but it’s unclear what the implications will be. Delaware Riverkeeper Network attorney Aaron Stemplewicz says it means no new evidence can be introduced in the appeals process.
“It’s a very limited amount of information that the [federal] court will be looking at,” said Stemplewicz. “That can be good or bad. If the DEP issued a poor record, it may turn out good for us. If they generated good records, it would be harder to win [an appeal].”
Stemplewicz says the Riverkeeper Network is still weighing options when it comes to appealing the decision. He lost another federal appeal to halt the project last week when a D.C. District Court rejected a request for a preliminary injunction. Stemplewicz argued that the Federal Energy Regulatory Commission, or FERC, which gave the green light to the project, failed to do an adequate environmental review. He says the pipeline company segmented the expansion in order to avoid greater scrutiny under the National Environmental Policy Act.
A spokesman for Kinder Morgan, the parent company of the Tennessee Gas Pipeline Company, told the New York Times that construction will begin because FERC has rejected all challenges. Richard Wheatley told the Times that the FERC decision is based on “diligent review” of issues regarding environmental concerns and rights-of-way.
Pike County resident Jolie DeFeis, who opposes the project, says the company could have taken a route using its existing rights-of-way. She says neither FERC nor the Army Corps of Engineers, which also issues permits, took an adequate look at alternative options.
As if the court fight over the pipeline permits were not confusing enough, here’s another twist:
Last Friday, the Riverkeeper’s Maya van Rossum tried again to get the Delaware River Basin Commission involved before the tree cutting began. The DRBC does not normally review natural gas pipeline projects, but there are a few exceptions.
The Commission had originally rejected the Riverkeeper’s request to review the Tennessee Gas Pipeline expansion projects, but has since decided it made a mistake. Last month, in a letter to van Rossum, DRBC executive director Carol Collier said she should have reviewed segments of the Upgrade Project within the basin. Two of those projects have already been completed. In those cases, the DRBC says it will conduct a review and then decide if any mitigation of the work already done should be required.
But in the case of the uncompleted section of the Northeast Upgrade, where the two activists continue to block tree cutting activities, DRBC spokesman Clarke Rupert says the Commission did all the review it was empowered to do last summer when the company applied for a water withdrawal permit.
Rupert says after the Commission staff did its review, no appeals came from the Delaware Riverkeeper Network or any other organization.
Van Rossum, however, disagrees that the DRBC has done all it can. She says the Commission’s review of that section of the Tennessee Gas Pipeline Northeast Upgrade Project was too limited, and the agency should exercise its authority to do more to scrutinize the project.
In the meantime, activists have enlisted the help of Sen. Bob Casey, D., Pa.. Casey has written to the Army Corps of Engineers urging it to look at alternative routes for the project.

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