Construction on a Kinder Morgan (KMI) pipeline for a power plant near Nashville, Tennessee is delayed after an appeals court put a hold on two permits necessary for construction.

The 6th U.S. Circuit Court of Appeals in Cincinnati, Ohio, stayed the permits, which would have allowed construction on the Tennessee Valley Authority’s (TVA) Cumberland plant to begin as early as Oct. 22, the Associated Press reported.

The judges ruled 2-1 that construction would be halted to consider the plaintiffs’ arguments based off the Clean Water Act. The stay may remain in place until oral arguments, scheduled for Dec. 10.

Kinder Morgan had filed for a Federal Energy Regulatory Commission (FERC) permit for the Cumberland project in July 2022. The proposed line would be 32 miles long and terminate at the proposed plant in Stewart County, Tennessee.

The Sierra Club and Appalachian Voices brought the suit, charging that the TVA’s plans to replace many of its current coal-fired power plant stations with gas-fired generation would harm the environment. The TVA should instead focus on solar, wind and other forms of generation that eliminate greenhouse gas emissions, the suit charges.

Federal appeals courts have taken an active role in energy project permitting in 2024. In July and August, the D.C. Court of Appeals struck the FERC permits for two LNG liquefication facilities and a pipeline expansion project in the mid-Atlantic.

Thomas Sharp, director of permitting intelligence at ARBO, said the Cumberland stay was “pretty factually narrow” and was unlikely to have a broad effect on other projects. However, the ruling exemplifies a tendency among energy infrastructure opponents to exhaust every legal avenue possible.

“It is demonstrative of the macro trend we continue to see regarding litigation of proposed natural gas projects generally,” he said in an email to Hart Energy. “The Cumberland project now faces litigation on three fronts: this 6th Circuit Clean Water Act stay, a challenge to the FERC Certificate at the D.C. Circuit and a challenge to the NEPA review of the coal-to-gas conversion power generation facility itself at the Tennessee Middle District Court.”

Sharp said the appeals court’s ruling is narrow and won’t generally apply to midstream projects because of the unique circumstances of the project: The pipeline project is going to fuel the TVA, a federally operated power utility.

 The court also noted that the stay was temporary and could be lifted if further information came to light before oral arguments.

Comments