United States District Court, M.D. Tennessee, Nashville Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE.
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.
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
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.)
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)). 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. (Verified Compl.
¶¶ 63-74, ECF No. 1
(“Compl.”).) 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.)
Gas offers several responses to Metro's mootness
argument. (See generally Mootness Resp.) Tennessee
Gas represents 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 (“Defendant 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).)
in related litigation appear to have resolved some, if not
all, of the parties' permit disputes. On the day 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. 17-1048 (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.
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- 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.)
developments in the D.C. Circuit affect Metro's moot-ness
argument. If no permit disputes remain, Tennessee Gas's
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. Brewer, 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”).
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 discussed above). They
should not contain legal argument. If the parties are able,
they should file jointly. 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