NEXUS gas pipeline opponents are arguing the federal government acted illegally during the approval process for the project and, specifically, failed to ascertain its safety.
Those assertions were filed in federal court in Akron Wednesday in response to a motion from NEXUS and the Federal Energy Regulatory Commission to dismiss a lawsuit from the group of more than 60 people including landowners from Medina, Summit and Stark counties.
In its motion to dismiss, NEXUS says the court has no jurisdiction in the matter because the Natural Gas Act of 1938 gives “exclusive review” to a federal court of appeals in Washington, D.C.
NEXUS also said that FERC “performed substantial independent analysis of pipeline safety issues.”
The suit asks the federal court to vacate and overturn a recommendation made last Nov. 30 by a commission unit that the pipeline’s planned route through Medina, Lorain and other counties be approved for the $2 billion project.
David Mucklow, the Green attorney representing the landowners, countered that the federal court does have jurisdiction and FERC illegally gave authority over safety to the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration, or PHMSA.
The “Final Environmental Impact Statement” submitted to FERC approved the project’s original route that includes a line through Medina County that also features a compressor station in Guilford Township to help propel the gas on its northern and western route. Since Nov. 30, NEXUS has been awaiting a certificate of approval to begin construction.
“By simply deferring to DOT pipeline guidelines, FERC has ensured that no safety analysis has been performed regarding this specific pipeline and its route,” Mucklow’s response says.
The filing asserts: “FERC has illegally and recklessly delegated all safety issues to PHMSA, which cannot consider the siting of the pipeline pursuant to federal regulations leaving no one to consider safety aspects.”
NEXUS is a business consortium made up of Spectra Energy of Houston, DTE Energy of Detroit and Enbridge Inc. of Calgary, Alberta, Canada. In August 2014, the company proposed the 255-mile project that would carry natural gas from Columbiana County in eastern Ohio through Stark, Summit, Medina and Lorain counties, then to Michigan and into Canada for export sales from an energy hub.
Tamara Young-Allen, a spokeswoman for FERC, declined comment on the case on Thursday.
Adam Parker, a spokesman for NEXUS, said Thursday in a prepared statement: “NEXUS does not comment on pending litigation.
“Regarding FERC,” Parker’s statement continued, “NEXUS has undergone a rigorous environmental review and has been publicly evaluated for nearly three years. In the Final Environmental Impact Statement (FEIS) issued in November 2016, FERC found NEXUS’ proposed route acceptable and noted that impacts would be less than significant in light of the Project’s proposed mitigation and other mitigation measures recommended by FERC Environmental Staff.”
Parker added: “The record supporting NEXUS’ certificate application is complete and ready for prompt FERC review once a quorum is restored.”
The FERC board is operating with one commissioner while the U.S. Senate considers nominees to fill four vacant seats on the five-member commission. Without a quorum, the commission is unable to make decisions affecting requests for certification.
Paul Gierosky of York Township, a leader of the Coalition to Reroute NEXUS, or CORN, is among the group of 60 participants in the suit. In an email to CORN supporters and members Thursday, Gierosky noted that a magistrate in Judge John R. Adams’ office, Kathleen Burke, informed the parties that they may ask for her recusal because of a connection to a nomination for the Federal Energy Regulatory Commission by President Donald Trump. A conference call among attorneys in the case was held Wednesday.
Adams, of the Akron unit of U.S. District Court for the Northern District of Ohio, has been assigned the case.
Burke is a former partner at the law firm Jones Day. On July 13, President Trump nominated Kevin McIntyre, an attorney in Jones Day’s energy law practice, to fill a vacant seat on the five-member FERC board.
Gierosky’s message said Burke did not work in the field of energy law at Jones Day and does not know McIntyre.
He said plaintiffs in the case have a Monday deadline to request Burke’s recusal.
Contact Lawrence Pantages at (330) 721-4065 or firstname.lastname@example.org.