Supreme Court Will Not Hear Constitution Pipeline Case

May 1, 2018

The U.S. Supreme Court will not hear a case from Constitution Pipeline over New York’s denial of a key permit. Opponents are claiming victory, but the pipeline company remains committed to seeing the project through.

The high court’s refusal to hear the case lets stand an August 2017 U.S. appeals court ruling that rejected the pipeline company’s argument that the New York State Department of Environmental Conservation was "arbitrary and capricious" in denying a water quality permit. The permit is required for the project to move forward. Wes Gillingham is associate director of Catskill Mountainkeeper, which has been engaged in legal battles against the pipeline.

“What’s happened here with the Supreme Court is they have said that New York state has the authority, federally granted authority, to deny a water quality certificate under the Clean Water Act that gives New York the right to protect its water,” Gillingham says. “That’s what’s the huge precedent here. And this is a huge victory for all of us who lives here and all of us who depend on clean, healthy water.”

A spokesman for Williams Companies, a partner in the project, says, in part, “While we are disappointed in the Supreme Court’s decision not to hear our case, we are still fully committed to pursuing our primary avenue of relief, which is the pending rehearing request with the Federal Energy Regulatory Commission.” Again, Gillingham.

“They can say that. At least on the legal front, they have lost multiple times now,” says Gillingham. “And this is really the nail in the coffin.”

Constitution Pipeline’s rehearing request with FERC is over FERC’s January rejection of the company’s petition that asked to find that New York state wrongly denied the water permit. A FERC spokeswoman says the Commission is still considering the request and there is no timeline for a decision. The Williams spokesman says the company believes that the FERC-approved project should be allowed to proceed with construction. He says, “The Constitution Pipeline is much-needed energy infrastructure designed to bring natural gas to a region of the country that this past winter experienced the highest natural gas prices in the world.”

In April 2016, the DEC denied Constitution Pipeline a water quality permit, and 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. FERC’s January 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. Gillingham says Catskill Mountainkeeper, an intervenor in the case, along with other groups such as Stop the Pipeline and the Sierra Club, have been fighting against the pipeline for some 10 years. He believes the Supreme Court’s refusal to hear Constitution Pipeline’s case is precedent-setting beyond New York.

“I think this really speaks to pipeline construction across the country, that states have the ability under the law, under the Clean Water Act, they have the federal authority to oversee how to protect their streams and rivers for their communities and their people,” says Gillingham.

Constitution Pipeline’s 124-mile natural gas pipeline is planned to run from Pennsylvania to New York. The route in New York would go through Broome, Chenango, Delaware, and Schoharie Counties, ending in Schoharie County. DEC did not respond to a request for comment in time for this broadcast.