Tennessee Gas Pipeline Company, L.L.C. v. Metropolitan Government of Nashville and Davidson County, Tennessee

Filing 26

ORDER re motions: The Court ORDERS the parties to file briefs addressing the status of any permits relevant to the permit-related allegations in the Verified Complaint (i.e., Paragraphs 6374). Signed by Judge Samuel H. Mays, Jr on 8/9/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

TENNESSEE GAS PIPELINE COMPANY, )
L.L.C.,
)
)
Plaintiff,
)
)
v.
)
)
METROPOLITAN GOVERNMENT OF
)
)
NASHVILLE AND DAVIDSON COUNTY,
TENNESSEE,
)
)
Defendant.

No. 3:17-cv-00272

ORDER

Before the Court are three motions.

First, on February 10,

2017, Plaintiff Tennessee Gas Pipeline Company, L.L.C. (“Tennessee Gas”) filed a Motion for Preliminary and Permanent Injunctions (the “Injunction Motion”).

(ECF No. 6; see also Mem. of

Law in Supp. of Mot. for Prelim. and Permanent Injs., ECF No.
7.)

Defendant Metropolitan Government of Nashville and Davidson

County, Tennessee (“Metro”) has not filed a response to the Injunction Motion.
Second, on February 24, 2017, Metro filed a motion to dismiss Tennessee Gas’s complaint based on a lack of subject-matter
jurisdiction.

(The Metro. Gov’t’s Mot. to Dismiss and Mem. of

Law in Supp., ECF No. 12 (“Mot. to Dismiss”).)

On March 10,

2017, Tennessee Gas filed a response to the Motion to Dismiss.

(Tenn. Gas Pipeline Co., L.L.C.’s Resp. to Def.’s Mot. to Dismiss, ECF No. 13.)

On March 17, 2017, Metro filed a reply in

support of the Motion to Dismiss.

(Reply in Supp. of the Metro.

Gov’t’s Mot. to Dismiss, ECF No. 16.)

On April 25, 2017, the

Court ordered the parties to file supplemental briefs addressing
the jurisdictional arguments in the Motion to Dismiss.

(Order,

ECF No. 18 (“April 2017 Order”).)
Third, on May 1, 2017, Metro filed its supplemental brief.
(Def. Metro. Gov’t’s Suppl. Br. and Mot. to Dismiss as Moot, ECF
No. 19 (“Metro Suppl. Br.”).)

Metro asked the Court to treat

the Metro Supplemental Brief as an additional motion to dismiss
based on mootness.

(Id. at 1.)

On May 15, 2017, Tennessee Gas

filed a response to the motion-to-dismiss argument in the Metro
Supplemental Brief.

(Tenn. Gas Pipeline Co., L.L.C.’s Resp. to

Def.’s Second Mot. to Dismiss, ECF No. 21 (“Mootness Resp.”).)
The same day, Tennessee Gas filed a supplemental brief pursuant
to the April 2017 Order.

(Tenn. Gas Pipeline Co., L.L.C.’s

Resp. to Def.’s Supp. Br., ECF No. 20.)
Metro contends that this matter is moot.

If moot, it must

be dismissed because “[a] federal court ‘lacks jurisdiction to
consider any case or issue that has lost its character as a present, live controversy and thereby becomes moot.’”

Ermold v.

Davis, 855 F.3d 715, 718–19 (6th Cir. 2017) (quoting Demis v.
Sniezek, 558 F.3d 508, 512 (6th Cir. 2009)).

2

The Verified Com-

plaint asserts, inter alia, that the Metro Public Health Department and the Metro Department of Codes and Building Safety have
not issued permits necessary for the construction and/or operation of Compressor Station 563.
No. 1 (“Compl.”).) 1

(Verified Compl. ¶¶ 63–74, ECF

Metro represents that a relevant permit

package “has already been sent to the EPA for review . . . .”
(Metro Suppl. Br. 2; see also Decl. of John Finke ¶¶ 3–4, ECF
No. 19-1.)
Tennessee Gas offers several responses to Metro’s mootness
argument.

(See generally Mootness Resp.)

Tennessee Gas repre-

sents that, as of the date of its Mootness Response, Metro has
not issued final permits authorizing construction, as opposed to
submitting draft permits to the EPA.

(See, e.g., id. at 6 (“De-

fendant has yet to issue any final air permits to Tennessee Gas.
Even assuming EPA provides its approval of the draft air permits, Metro may still refuse to issue the final air permits.
Defendant could still enforce the ordinances against Tennessee
Gas regarding its application for building permits as long as
the

final

air

permits

are

not

issued.”)

(emphasis

Tennessee

Gas’s).)
Developments in related litigation appear to have resolved
some, if not all, of the parties’ permit disputes.
1

On the day

Compressor Station 563 is a component of Tennessee Gas’s Broad
Run Expansion Project, a project authorized by the Federal Energy Regulatory Commission. (See, e.g., Compl. ¶ 30.)
3

it filed the Verified Complaint, Tennessee Gas filed an action
in the U.S. Court of Appeals for the District of Columbia, challenging Metro’s delay in issuing the requested permits for Compressor Station 563.

(See generally Pet. for Review Pursuant to

Section 19(d)(2) of the Natural Gas Act of Agency’s Failure to
Act, Tennessee Gas Pipeline Co., L.L.C. v. Paul, Case No. 171048 (D.C. Cir. Feb. 10, 2017).)

On June 29, 2017, the D.C.

Circuit held that the Metro Public Health Department had “failed
to timely act on Tennessee Gas’s permit application” and granted
Tennessee Gas’s petition.

Tenn. Gas Pipeline Co., LLC v. Paul,

No. 17-1048, 2017 WL 2859544, at *2 (D.C. Cir. June 29, 2017).
The D.C. Circuit also ordered the parties to submit to the court
“a proposed schedule for action on remand.”

Id.

On July 10, 2017, the parties before the D.C. Circuit filed
a joint response.

(Joint Resp. of Pet’r and Resps., Tennessee

Gas Pipeline Co., L.L.C. v. Paul (D.C. Cir. July 10, 2017).)
The parties made the following representations:
On June 23, 2017, after the Environmental Protection Agency (“EPA”) notified the
Metro Public Health Department of the Metropolitan Government of Nashville and Davidson
County (“Department”) that EPA had no objections to the draft proposed permits, the Department issued to [Tennessee Gas] final air
construction permits for the construction of
the new compressor station in Davidson County, Tennessee, that is the subject of this
proceeding. Also on June 23, Tennessee Gas
accepted these air construction permits and
filed them with the Federal Energy Regulato-

4

ry Commission (“Commission”) in order to obtain its approval to proceed with construction
of
the
new
compressor
station.
Tennessee Gas received authority from the
Commission on June 30, 2017, to begin
ground-disturbing activities for the new
compressor station.
The remaining permit for which Tennessee Gas sought approval in its January 31,
2015, application to the Department is for
an air operating permit. The Department has
agreed that, following construction of the
new compressor station, it will issue Tennessee Gas a final air operating permit
promptly upon Tennessee Gas’s submission to
the Department of test performance data confirming the facility’s performance in accordance with the permit limits and upon the
facility demonstrating compliance with the
requirements of each construction permit.
This will satisfy all of the Department’s
operational concerns.
At the time the Court issued the June
29, 2017 Order, in addition to the pending
request to proceed with construction of the
new compressor station at the Commission,
the parties were engaged in discussions regarding issuance of the air operating permit, and intended to inform the Court of the
status of Tennessee Gas’s requests for all
of the permits upon resolution of those discussions.
Prior to receiving the June 29,
2017 Order, the parties anticipated informing the Court of the status on June 30,
2017, and requesting the Court dismiss the
case.
The Department’s issuance of the final air construction permits and its agreement as to the issuance of the final air
operating permit resolves Tennessee Gas’s
claims in this proceeding.
(Id. at 1–2.)
These developments in the D.C. Circuit affect Metro’s mootness argument.

If no permit disputes remain, Tennessee Gas’s
5

responses

to

that

argument

depend

on

events

that

might,

but

might not, happen in the future, an important, but not dispositive, issue when analyzing mootness.

See, e.g., Witzke v. Brew-

er, 849 F.3d 338, 342 (6th Cir. 2017) (dismissing appeal as moot
where alleged harms were “too speculative to satisfy Article
III’s case or controversy requirement”).
The Court ORDERS the parties to file briefs addressing the
status of any permits relevant to the permit-related allegations
in the Verified Complaint (i.e., Paragraphs 63–74).

The briefs

may repeat material provided to the D.C. Circuit, but should
provide also any material updates (including an update on the
status

of

the

air-operating

permit

should not contain legal argument.
they should file jointly.

discussed

above).

They

If the parties are able,

If a joint filing is not possible,

each party should address (1) agreed facts about the status of
relevant permits, (2) Tennessee Gas’s views as to areas of factual disagreement, and (3) Metro’s views as to areas of factual
disagreement.

Briefs shall be filed within (14) days of the en-

try of this Order.
Either party may, if it wishes, file a supplemental brief
addressing its positions on the mootness of this action given
the present status of the applicable permits.

Any supplemental

brief shall be no longer than 5 pages and shall be filed within
fourteen (14) days of the entry of this Order.

6

IT IS SO ORDERED this 9th day of August, 2017.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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