SAMUEL H. MAYS, Jr., District Judge.
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;
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. (
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.'"
Tennessee Gas offers several responses to Metro's mootness argument. (
Developments 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. (
On July 10, 2017, the parties before the D.C. Circuit filed a joint response. (Joint Resp. of Pet'r and Resps.,
The parties made the following representations:
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.
These developments in the D.C. Circuit affect Metro's mootness 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.
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 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 areas of factual disagreement, and (3) Metro's views as to areas of factual disagreement. Briefs shall be filed within (14) days of the entry 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.
IT IS SO ORDERED.