Description: Proceedings concerning New York State's denial of a water quality certification for a natural gas pipeline.
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New York State Department of Environmental Conservation v. Federal Energy Regulatory Commission
Case Documents:
Filing Date Type File Action Taken Summary 03/12/2018 Opinion Download Petition for review denied. Second Circuit Upheld FERC Determination That New York Department of Environmental Conservation Waived Authority to Provide Water Quality Certification for Pipeline. The Second Circuit Court of Appeals dismissed the New York State Department of Environmental Conservation’s (NYSDEC’s) appeal of FERC orders determining that NYSDEC waived its authority to provide a water quality certification under Section 401 of the Clean Water Act for a 7.8-mile natural gas pipeline that connects a new power plant to an existing interstate pipeline. The pipeline’s developer submitted its request for certification in November 2015, and NYSDEC twice requested additional information to complete the application; in August 2016, the developer submitted responses to the second request. NYSDEC denied the pipeline developer’s request for certification in August 2017, citing FERC’s failure to adequately consider greenhouse gas impacts in its environmental review. The Second Circuit agreed with FERC that Section 401 required NYSDEC to act on the request for a certification within one year of receipt of the request, and that this time limit did not apply only for “complete” applications. The Second Circuit also rejected a challenge by intervenors to FERC’s jurisdiction over the pipeline; the court said the 7.8-mile pipeline was part of an “integrated system” to transport gas in interstate commerce even though it was located entirely within New York. 01/17/2018 Reply Download Reply brief filed by New York State Department of Environmental Conservation. 01/11/2018 Brief Download Brief filed by FERC. 01/11/2018 Brief Download Brief filed by intervenor-respondents Millennium Pipeline Company and CPV Valley. 12/07/2017 Order Download Emergency motion for stay denied. Second Circuit Denied Stay Requested by New York Department of Environmental Conservation to Stop Pipeline Construction. The Second Circuit Court of Appeals denied the New York State Department of Environmental Conservation’s (NYSDEC’s) emergency motion for a stay of all construction activities for the Valley Lateral Project, a 7.8-mile pipeline and related facilities that will transport natural gas from the mainline system to a new power plant in Orange County, New York. NYSDEC is challenging FERC’s determination that NYSDEC waived its authority to consider an application for a water quality certification for the project. A hearing on the merits was scheduled for January 24, 2018. 11/20/2017 Opposition Download Opposition filed by FERC to petition for writ of prohibition and to emergency motion for stay. 11/20/2017 Opposition Download Opposition filed by Millennium Pipeline Co. to petition for writ of prohibition and to motion for stay. 11/17/2017 Petition for Review Download Petition for review filed. 10/30/2017 Petition Download Emergency petition for writ of prohibition filed. -
In re Millennium Pipeline Co.
Case Documents:
Filing Date Type File Action Taken Summary 11/16/2017 Order Download Rehearing of November 9, 2016 order and stay denied. FERC denied NYSDEC’s request to reopen the record or rehear FERC’s November 2016 authorization of the project. FERC said New York State Department of Environmental Conservation’s contention that the D.C. Circuit’s decision in Sierra Club v. FERC, No. 16-1329, required FERC to quantify the project’s downstream greenhouse gas emissions and consider their impacts was untimely and that, in any event, the analysis had already been done. 11/15/2017 Order Download Rehearings of September 15, 2017 declaratory order and motions to stay denied. On November 15, 2017, FERC denied the New York State Department of Environmental Conservation’s (NYSDEC’s) request for rehearing of FERC’s determination that NYSDEC had waived its authority to issue a water quality certification for the Valley Lateral pipeline project, a 7.8-mile pipeline and related facilities that will transport natural gas from the mainline system to a new power plant in Orange County, New York. 10/13/2017 Request for Rehearing Download Request for rehearing filed by New York State Department of Environmental Conservation. 09/15/2017 Order Download Declaratory order issued. FERC Ruled That New York Department of Environmental Conservation Waived Authority to Act on Pipeline Application. After the New York State Department of Environmental Conservation conditionally denied an application for a water quality certification for a natural gas pipeline project on the ground that the Federal Energy Regulatory Commission (FERC) had not adequately evaluated the project’s downstream greenhouse gas emissions, FERC issued a declaratory order finding that DEC had waived its authority to act on the application by failing to issue a decision within the one-year timeframe required by the Clean Water Act. FERC indicated that it would assess in a separate order DEC’s motion to reopen the record and to stay FERC’s November 2016 authorization of the project. DEC had argued that FERC should reopen the record to take evidence on downstream greenhouse gas impacts or grant rehearing to conduct supplemental environmental review. 08/30/2017 Motion Download Motion filed by New York State Department of Environmental Conservation to reopen and stay, or in alternative to request rehearing and stay. -
In re Valley Lateral Project
Case Documents:
Filing Date Type File Action Taken Summary 08/30/2017 Letter Download Application denied. New York Denied Water Quality Certificate for Pipeline Project, Citing D.C. Circuit Decision Requiring Consideration of Downstream Greenhouse Gas Emissions. The New York State Department of Environmental Conservation denied an application for a Water Quality Certificate under Section 401 of the Clean Water Act and state permits for a natural gas pipeline project. DEC said FERC’s environmental review of the project was inadequate due to the D.C. Circuit’s decision in Sierra Club v. FERC, No. 16-1329 (D.C. Cir. Aug. 22, 2017), in which the D.C. Circuit found that FERC should have considered the downstream greenhouse gas emissions from combustion of natural gas transported by another pipeline project. NYSDEC said FERC had not conducted such an analysis for the New York pipeline project and that the D.C. Circuit’s decision was a material change in applicable law warranting denial of the application. NYSDEC also submitted a motion to FERC for reopening or rehearing and staying the project.