Appeals Court’s pipeline ruling comes too late to stop project

SAN FRANCISCO
October 22, 2012 1:01pm

Approval by the Bureau of Land Management of the “Ruby Pipeline” project, a 42-inch-diameter natural gas pipeline owned by Kinder Morgan (NYSE: KM) extending more than 678 miles from Wyoming to Oregon, was arbitrary and capricious, the 9th U.S. Circuit Court of Appeals says.

The 46-page ruling vacates a biological opinion by the U.S. Fish & Wildlife Service and says it must come up with a revised biological opinion that addresses the impacts, if any, of the project’s groundwater withdrawals on listed fish species and critical habitat. The court also says the federal government much categorize and treat Conservation Action Plan measures as “interrelated actions” or exclude any reliance on their beneficial effects in making a revised jeopardy and adverse modification.

But the ruling will have little impact on the pipeline. Opponents had failed to get federal courts to halt its construction. During the time the case wound its way through the courts, Kinder Morgan completed the pipeline and put it into operation.

But the ruling is expected to have impact beyond one pipeline, says Amy Atwood of the Portland, Ore., office of the Center for Biological Diversity, and lead attorney for the plaintiffs in the case.

“We’re thrilled. It reinforces the key principals that underpin the Endangered Species Act,” she says. “It makes sure this won’t happen again.”

“We are reviewing the decision by the Court of Appeals for the 9th Circuit,” says Joe Hollier, corporate communications manager for Kinder Morgan. “Ruby is continuing to transport gas and remains in operation.”

Groups opposed to the pipeline argued that the biological opinion did not take into account the potential impacts of withdrawing 337.8 million gallons of groundwater from 64 wells along the pipeline.

Those suing – including the Center for Biological Diversity; Defenders of Wildlife; Sierra Club; Great Basin Resource Watch; Summit Lake Paiute Tribe; Fort Bidwell Indian Community, and others, also disputed the government’s fish kill numbers.

The right-of-way for the pipeline encompasses approximately 2,291 acres of federal lands and crosses 209 rivers and streams that support federally endangered and threatened fish species.