Breaking News: Litigation Update on State Delegated Permit Issues

The Fate of the Section 401 One-Year TimeframeNational Fuel's Appeal of its Northern Access 2016 Project

In our prior report concerning National Fuel's appeal of the denial of its Water Quality Certificate (WQC) for its Northern Access 2016 expansion, we noted that the statute under which it appealed requires the court to give expedited consideration to the appeal. We also questioned exactly what "expedited consideration" means to the Second Circuit. Since that report, National Fuel formally requested expedited consideration of its appeal and requested a specific briefing schedule. That motion was not opposed by the New York State Department of Environmental Conservation, and so the Second Circuit adopted the proposed briefing schedule which requires final briefs to be submitted on August 28, 2017, which should be only a couple of weeks after the court resumes hearing oral arguments for the 2017-2018 term.

Kinder's Appeal of Nashville's Failure to Issue Air Permits

In a case very similar to the ones we have been covering on state's delaying or denying the issuance of WQCs , Kinder's Tennessee Gas Pipeline filed an appeal with the DC Circuit over the inordinate delay (over 2 years) by the Metropolitan Government of Nashville and Davidson County, Tennessee (Nashville) in issuing air permits for its compressor station 563 that is part of its Broad Run Expansion Project. Like in the Millennium case, currently pending before the DC Circuit, Tennessee is essentially arguing that Nashville waived its right to issue the delegated federal air permits by not issuing them within the time frame fixed by FERC and also by failing to issue them within the 18 month time frame in the Clean Air Act. The case was fully briefed and had been scheduled for oral argument on May 10, 2017. However, on April 25, the court issued a notice indicating that it was canceling the oral argument and would decide the case on the papers as filed.

Just two days after that notice by the court, Nashville was suddenly able to issue the permit for review by the EPA. In a letter dated May 1, counsel for Nashville notified the court of this surprising coincidence and asserted that there is nothing more for Nashville to do, in what can only be seen as an obvious attempt to claim that the case before the court is now moot. Tennessee Gas has not yet formally responded to this development, but it will be interesting to see if the court goes ahead and rules on the merits of the case. The court's decision to not hear oral argument may mean that a decision is coming in the Millennium WQC case pending before the DC Circuit, and that the decision in that case may also apply to this Tennessee case.Judge David S. Tatel was the only judge in common on the three-judge panels that were assigned to the Millennium and Tennessee cases.