Description: Petition seeking declaratory order that the New York State Department of Environmental Conservation had waived jurisdiction over water quality certificate for interstate natural gas pipeline project.
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Constitution Pipeline Co. v. Federal Energy Regulatory Commission
Case Documents:
Filing Date Type File Action Taken Summary 02/28/2019 Order Download FERC's motion for voluntary remand granted. D.C. Circuit Granted FERC Motion for Voluntary Remand of Case Concerning Timeliness of Determination on Water Quality Certification for Constitution Pipeline. On February 28, 2019, the D.C. Circuit granted the Federal Energy Regulatory Commission’s (FERC’s) motion for voluntary remand of a proceeding in which a natural gas pipeline developer sought review of FERC’s determination that the New York State Department of Environmental Conservation (NYSDEC) had not waived its authority to issue a water quality certification for the pipeline project. The pipeline project at issue is the Constitution Pipeline, which would extend for approximately 124 miles from Pennsylvania through four counties in New York. The developer first submitted an application for a water quality certification to NYSDEC in 2013, and subsequently withdrew and resubmitted applications in 2014 and 2015. NYSDEC denied the application in April 2016, and the Second Circuit upheld the denial. FERC told the D.C. Circuit that it wished to reconsider the orders challenged by the pipeline developer in light of the court’s recent decision in Hoopa Valley Tribe v. FERC, in which the D.C. Circuit held that withdrawal and resubmission of water quality certification applications “does not trigger” a new one-year statutory period of review. FERC said Hoopa Valley left open questions about whether “wholly new” requests can trigger a new statutory review period and about “how different” an application would have to be to trigger a new review period. FERC said it would permit the parties on remand to submit supplemental materials on the significance of the Hoopa Valley decision. 02/25/2019 Motion Download Unopposed motion for voluntary remand filed by FERC. -
In re Constitution Pipeline Co.
Case Documents:
Filing Date Type File Action Taken Summary 08/28/2019 Order Download FERC issued order on voluntary remand reversing determination that New York Department of Environmental Conservation had not waived its authority. FERC Found that New York Waived Section 401 Authority for Constitution Pipeline. The Federal Energy Regulatory Commission (FERC) issued an order reversing its previous determination that the New York State Department of Environmental Conservation (NYSDEC) had not waived its authority under Section 401 of the Clean Water Act to issue or deny a water quality certification for the Constitution Pipeline, a 125-mile-long natural gas pipeline extending from Pennsylvania to New York. FERC issued the order on voluntary remand from a D.C. Circuit proceeding challenging the previous no-waiver determination so that FERC could consider the D.C. Circuit’s 2019 decision in Hoopa Valley Tribe v. FERC, which held that withdrawal and resubmission of water quality certification applications “does not trigger” a new one-year statutory period of review. FERC concluded that Hoopa Valley compelled a finding of waiver based on NYSDEC’s failure to act on the pipeline developer’s Section 401 application within one year and on NYSDEC’s actions encouraging the developer’s withdrawal and resubmission of its application for the purpose of avoiding the one-year waiver period. 07/19/2018 Order Download Rehearing denied. FERC Again Said New York Department of Environmental Conservation Had Not Waived Authority to Issue Certification for Gas Pipeline. FERC denied a pipeline company’s request for rehearing of its determination that the New York State Department of Environmental Conservation (NYSDEC) had not waived its authority to issue a water quality certification for the Constitution Pipeline Project. The company first submitted its application for the certification in August 2013. NYSDEC denied the water quality certification in April 2016, after twice requesting that the company withdraw and resubmit its application, with the final submission made in April 2015. FERC found that the record did not show that NYSDEC failed to act on the application outside of the one-year timeframe required by the Clean Water Act. The pipeline company said it would appeal FERC’s decision. 01/11/2018 Order Download Petition for declaratory order denied. FERC Declined to Find That New York Department of Environmental Conservation Waived Authority to Act on Water Quality Certification Application for Gas Pipeline. The Federal Energy Regulatory Commission (FERC) denied a petition from the company developing the Constitution Pipeline. The petition requested that FERC find that the New York State Department of Environmental Conservation (NYSDEC) had waived its authority to act on the company’s application for a water quality certification. (The Constitution Pipeline would extend for approximately 124 miles from Pennsylvania through four counties in New York.) The company first submitted an application to NYSDEC in 2013, and subsequently withdrew and resubmitted applications in 2014 and again in 2015. NYSDEC denied the company’s application in April 2016, citing, among other things, the risk of future flooding events that could expose the pipeline and noting that flooding conditions from extreme precipitation events were projected to increase during the pipeline’s anticipated operational life due to climate change. NYSDEC also cited potential increases in water temperature related to the project’s removal of riparian vegetation and said climate change could exacerbate the temperature increases in the long term, resulting in long-term loss of trout populations. The Second Circuit Court of Appeals upheld NYSDEC’s denial in August 2017. In denying the company’s request for a waiver finding, FERC found no reason to depart from its previous determinations that the reasonable period of time for action on a water quality certification application was one year and declined to review NYSDEC’s review process for the company’s application to determine whether it had been reasonable. FERC also said the company’s voluntary withdrawal and resubmission of its application gave NYSDEC new deadlines. 10/11/2017 Petition Download Petition for declaratory order filed. On October 11, the pipeline company developing the Constitution Pipeline petitioned the Federal Energy Regulatory Commission for a declaratory order finding that the New York State Department of Environmental Conservation had failed to act within a reasonable period of time on its application for a water quality certificate and had therefore waived its jurisdiction. The Constitution is an interstate natural gas pipeline project in New York and Pennsylvania. NYSDEC denied the developer's application for a water quality certificate in April 2016; the Second Circuit upheld the denial in August 2017.