The Cuomo-corrupted New York Dept. of Environmental Conservation (DEC) is spitting and sputtering, “warning” the Federal Energy Regulatory Commission that if they (FERC) decide to rule that NY took too long to approve the Williams Constitution Pipeline and now gives the project a go-ahead, the DEC intends to rain down all sorts of legal hell on the agency. Which tells us one thing: the DEC is VERY nervous that their power to block pipeline projects is about to be neutered.
We won’t recall the entire history of Williams and FERC disagreeing over whether or not NY’s action in blocking the Constitution project was illegal. You can read that history here (see FERC Signals it May Overrule NY to Allow Constitution Pipe).
The current situation is that following a recent decision by the D.C. Circuit Court of Appeals known as the Hoopa Valley Tribe v. FERC case (dealing with a hydroelectric dam out West), FERC decided to reconsider its earlier decision on the Constitution case. The D.C. Circuit ruled in the Hoopa Valley case that states (like NY) cannot keep asking project builders (like Williams) to withdraw applications for water crossing permits to “restart the clock” ticking (like they did with Constitution). Such applications must be ruled on in one year, according to federal law. The court found pressuring applicants to withdraw and resubmit applications, thereby restarting the clock for an additional one year, violates the spirit and letter of the law. NY used that shenanigan against Williams with the Constitution project.
FERC is now rethinking, in light of the D.C. Circuit case, of whether to overrule NY and allow Constitution to move forward.
And the DEC is nervous that FERC is about to rule against them, making legal threats against FERC. In a recent “protest” filing with FERC, the DEC says that the Hoopa Valley case was a narrow decision and applies only to that one case, not to other cases like the Constitution. The DEC also said, “In light of the irreparable environmental harm that would be caused by construction of the project and the likelihood that a court would reverse a finding of waiver, any FERC order finding waiver should be stayed until judicial review is complete.” Which sounds a lot like bluster. If you can’t dazzle them with brilliance, baffle them with….
The DEC is trying to scare FERC into inaction–into waiting another half decade for various courts to weight in. We don’t think FERC under Chairman Neil Chatterjee is going to yield to the DEC’s threats.
Here’s the DEC’s “we’ll sue your a$$ to kingdom come if you overturn our rejection of the Constitution Pipeline” letter sent to FERC earlier this week:
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