FERC Denies Constitution Pipeline Petition

Jan 12, 2018

The Federal Energy Regulatory Commission dealt a blow to Constitution Pipeline Thursday, rejecting the company’s petition that asked FERC to find that New York state wrongly denied the project a key permit. The pipeline company plans to fight the decision.

Constitution Pipeline’s planned 124-mile natural gas pipeline from Pennsylvania to New York hit another major roadblock with FERC’s decision. In April 2016, the New York state Department of Environmental Conservation denied Constitution Pipeline a water quality permit, which is required for the project to progress. Constitution challenged the DEC denial and in August 2017, a U.S. Court of Appeals rejected the company’s argument that the DEC was "arbitrary and capricious" in denying a water quality permit. In its petition to FERC, Constitution argued that the DEC waived its authority by failing to act on the permit with a certain time period.

At issue is when the clock started for DEC to decide on the permit. Constitution withdrew and resubmitted applications, after requests for more information, and FERC’s decision rules that the refiling of the application restarts the one-year waiver period under the Clean Water Act; thus the DEC was within its authority and timeline to deny the water quality permit. Wes Gillingham is associate director of Catskill Mountainkeeper, which has been engaged in legal battles against the pipeline and is an intervenor in the case.

“This is huge, both for the people of the state of New York and Pennsylvania. This was their way of expanding the markets from the drilling fields in Pennsylvania and it was going to run a 124-mile swath across the western side of the Catskills and threaten waterways all along that route,” Gillingham says. “So this is really big to have FERC come out and say no.”

Constitution Pipeline, in a statement on its website, says, “While the decision by the FERC to deny our petition is disappointing, we firmly believe that the Clean Water Act does more than impose a strict “one-year test” on state agencies and, accordingly, we believe the order erred by failing to find that Section 401 was waived due to New York failing to act within a “reasonable period of time” on Constitution’s Clean Water Act application. We are planning to seek rehearing and, if necessary, appeal of this decision in order to continue to develop this much-needed infrastructure project designed to bring natural gas to a region of the country that has recently experienced demand resulting in the highest natural gas prices in the world. Constitution remains committed to constructing and placing into operation this critical piece of energy infrastructure.”

A request for comment beyond this statement was not returned in time for this broadcast. A DEC spokesman referred to New York Governor Andrew Cuomo’s statement commending FERC for ruling in favor of New York’s efforts to prevent the project from moving forward.

The pipeline route in New York would wend through Broome, Chenango, Delaware, and Schoharie Counties, ending in Schoharie County. Again, Gillingham.

“This has been a long haul to prevent this, and it’s really about protecting communities, watersheds and the western side of the Catskills,” Gillingham says. “And it’s looking more and more like we’re actually going to be able to succeed at this.”

In its ruling, the FERC commissioners stated that they, “… continue to be concerned, however, that states and project sponsors that engage in repeated withdrawal and refiling of applications for water quality certifications are acting, in many cases, contrary to the public interest and to the spirit of the Clean Water Act by failing to provide reasonably expeditious state decisions.”

A FERC spokeswoman says Constitution Pipeline has 30 days from the January 11 FERC order to appeal and then FERC has 30 days from an appeal request to act. She declined comment on FERC’s decision saying the case on the project is still open. FERC approved the pipeline project in 2014 contingent on the state permit.

Gillingham says he’s not surprised the pipeline company will appeal and that his group’s battle goes beyond this project.

“Look, New York is facing an onslaught of gas infrastructure projects, and we’re at a time in history where we need to stop building those and move to renewables,” says Gillingham. “So that’s what the people of the state of New York need to keep the pressure on, not just on this project but all of the other infrastructure projects that are impacting communities  and then ruining our climate for everyone.”

Constitution Pipeline had all its permits in Pennsylvania and trees had already been cleared in preparation for construction.