Kinder Morgan Tennessee Pipeline Project Paused by Sixth Circuit

Environmental groups on Friday won their bid to put on hold federal and state authorizations for a natural gas project in Tennessee after the Sixth Circuit said irreparable harm could occur otherwise.

The Cumberland Project includes a 32-mile gas pipeline being constructed by Tennessee Gas Pipeline Co., a subsidiary of Kinder Morgan Inc., expected to provide natural gas to the Tennessee Valley Authority.

The US Court of Appeals for the Sixth Circuit paused the Tennessee Department of Environment and Conservation’s order issuing a water quality certification and the construction permit from the Army Corps of Engineers.

The Sierra Club and Appalachian Voices claimed the Tennessee agency and Army Corps failed to consider viable water-crossing alternatives for the pipeline route, harming the surrounding environment. The groups showed they’re at risk of “considerable irreparable harm” if pipeline construction begins before the court rules on the challenges to the state and federal agency’s project approvals, the Sixth Circuit said.

Both the Tennessee agency’s and Army Corps’ Clean Water Act certifications “acknowledge the irreparable nature of the Pipeline’s construction” to portions of wetlands and streams, the panel said.

The groups’ claims about the adequacy of each agency’s review for the project also presents serious questions on the merits, the court said.

Judges Karen N. Moore and Eric L. Clay sat on the panel.

Judge Amul R. Thapar dissented, saying the groups haven’t shown the Sixth Circuit is “likely to have jurisdiction over their state-law arbitrary-and-capricious claim” against the state agency, which means they also haven’t shown a likelihood of success on the merits of that claim. They also haven’t shown they’d face irreparable harm if the Corps’ permit isn’t stayed, he said.

The Sierra Club and Appalachian Voices are also challenging the project in the D.C. Circuit. They sought review in September of the Federal Energy Regulatory Commission’s approval for the pipeline, saying the commission was wrong to say the project would help reduce emissions—through the retirement of the coal-fired plant—when it would cause about 2.53 million metric tons annually.

The organizations are represented by the Southern Environmental Law Center and Appalachian Mountain Advocates. The Tennessee agency is represented by the state offices of the attorney general and solicitor general.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The cases are Sierra Club v. Tenn. Dep’t. of Env’t and Conservation, 6th Cir., No. 23-03682, 10/11/24 and Appalachian Voices v. US Army Corps. of Eng’rs, 6th Cir., No. 24-03831, 10/11/24.