9th Circuit Ruling Is Critical Reminder to Pipeline Project Participants

Guest Commentary

by Jean-Cyril (JC) Walker and Gregory A. Clark, Keller and Heckman, LLP

Arguably, the October 22, 2012, decision by the U.S. Court of Appeals for the Ninth Circuit in Center for Biological Diversity v. Bureau of Land Management,merely clarifies existing law.  On the other hand, the decision, which vacated and remanded a Bureau of Land Management (BLM) decision granting approval for a natural gas pipeline running from Wyoming to Oregon, underscores how approvals granted by Federal land management agencies can be vulnerable to challenges under the Endangered Species Act (ESA) if the Fish and Wildlife Service does not provide a well-grounded Biological Opinion.

The pipeline at issue, the Ruby Pipeline Project, had been approved by the Federal Energy Regulatory Commission (FERC) and the BLM in 2010 and began operating in July 2011.  To gain approval for the project, which covered Federal lands, Ruby Pipeline LLC (“Ruby”) sought and received a Certificate of Public Convenience and Necessity from the FERC and rights of way and temporary use permits from the BLM under the Natural Gas Act (NGA) and the Mineral Leasing Act (MLA), respectively.  Both approvals were contingent on mitigation measures contained in a separate “conservation action plan” that would be carried out by Ruby.  The mitigation measures were developed by Ruby through negotiation with the Fish and Wildlife Service (FWS), the wildlife agency tasked by the Endangered Species Act (ESA) with reviewing the proposed project.  Continue reading “9th Circuit Ruling Is Critical Reminder to Pipeline Project Participants”