The adage “you can’t put the toothpaste back in the tube” has manifested itself in two recent federal court decisions. Under separate theories, both the Second Circuit and the District Court of the District of Columbia have issued decisions that highlight the difficulty environmental groups faced in challenging energy infrastructure projects that have been completed during the course of litigation.

On December 18^th, the Second Circuit held that the Delaware Riverkeeper’s challenge of a permit issued to Millennium Pipeline Company, LLC’s pipeline was moot because the facilities at issue had already been constructed and were in service. Delaware Riverkeeper Network v. New York State Dep’t of Envtl. Conservation, case no. 17-3895-ag (2nd Cir., Dec. 18, 2019) (summary order). Millennium received permit coverage from the New York State Department of Environmental Conservation under a State Pollutant Discharge Elimination System general permit in connection with its 7.8 mile natural gas pipeline, which crossed a number of streams and watersheds. The Delaware Riverkeeper sought an emergency stay of the pipeline’s construction in 2017, alleging that Millennium did not provide proper notice of its intent for coverage under the general permit. The Second Circuit denied the emergency request, and Millennium began construction of the pipeline in 2018. NYDEC issued notices of termination of coverage under the general permit after Millennium achieved final stabilization of the project in August 2019. Because the pipeline was already in the ground and the permit was no longer required, the Second Circuit held that the Delaware Riverkeeper’s petition for review related to the permit issuance was moot. The court determined that rescission of permit coverage would not give the “any meaningful prospective relief” to the Delaware Riverkeeper as a result of the pipeline’s completion and operation. Furthermore, the court held that the prospect of Millennium repeating its activities in the case was mere speculation, because the underlying permit subject to the Delaware Riverkeeper’s challenge is set to expire in January 2020.

The Second Circuit’s decision follows the District Court of the District of Columbia’s decision on November 8, 2019, which refused to vacate a U.S. Army Corps of Engineer permit for an electric transmission project even though the court found deficiencies with the issuance of the permit. Nat’l Parks Conservation Assoc. v. Semonite, case no. 1:17-cv-01361-RCL (D.D.C., Nov. 8, 2019). The district court’s refusal to vacate the permit arose after the D.C. Circuit found that the Army Corps violated the National Environmental Policy Act when it issued a permit to Virginia Electric and Power Company to construct in relevant part a series of electrical transmission towers across the James River. The D.C. Circuit found fault with the Army Corps’ determination that it only needed to conduct an Environmental Assessment, instead of a full Environmental Impact Statement, as part of the permit issuance. The D.C. Circuit originally vacated the Army Corps permit in March, but in an en banc rehearing in May, the D.C. Circuit discovered that the construction project had been completed and the transmission lines electrified a week before its March decision. To that end, the D.C. Circuit remanded its decision to vacate the permit in light of the disruptive effects that vacatur would cause, but without overturning its finding that the Army Corps violated the National Environmental Policy Act. Back down at the district court, the court agreed that vacatur of the Army Corps’ permit was not appropriate. Although vacatur is the standard remedy in violations of the Administrative Procedure Act, the court determined under the Allied Signal two-factor test that although the deficiencies in the permit issuance were serious, vacatur would result in “seriously disruptive and harmful consequences.” In particular, the court cited the risk of an unreliable power source to hundreds of thousands of people if the permit was vacated and the project was decommissioned. Additionally, the court held that if the Army Corps ultimately decided to reissue the permit, then the “massive waste” from removing 17 steel towers, over 40 miles of conductor and fiber optic cable, and 32 solar panels and solar lights did not justify the vacatur of the permit.

As pipeline and other energy-related construction projects increasingly face challenges from environmental groups over permits, these two decisions showcase the uphill battle challengers face when projects are completed and in service. Decisions such as these are likely to repeat themselves as energy infrastructure projects continue being proposed throughout the country.

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