Big Green groups are asking the DC Circuit Court of Appeals to reconsider a case it recently decided that says when the federal Clean Water Act gives states one year to review requests for 401 water crossing permits, they have one year (365 days)–not two or three years by gaming the system (see Recent Fed Court Decision Gives NY Pipes Hope for Bypassing Cuomo).
The DC Circuit Court issued a decision on Jan. 25 that technically has nothing to do with projects like Williams’ Constitution Pipeline or National Fuel Gas Company’s Northern Access Pipeline (both projects are being blocked by New York State). The Hoopa Valley Tribe v. FERC case deals with the recommissioing and decommissioning of a series of hydroelectric dams in Oregon and California. The court decided that Oregon and Cali, by using the technique of pressuring applicants seeking a “401” certificate (authority delegated to states under the federal Clean Water Act) to withdraw and resubmit their application, lengthening the time to consider the application to more than one year, is a waiver of the state’s rights to review the application.
This is complicated stuff. In essence, the court ruled if a state takes more than one year to review a “stream/river crossing” permit, which is the time the federal statute gives them, they automatically waive their right to block a project. In the Hoopa case, it was a hydroelectric dam project. However, the same principle applies to pipeline projects. Specifically to pipelines like the Constitution where New York State did precisely what happened out West–the state asked Williams to withdraw and resubmit the application. And then, just before the end of the second year, the state Dept. of Environment Conservation, under orders from Gov. Andrew Cuomo, rejected the project. Williams now has legal precedent to ask the court to overrule NY and allow the project to proceed.
Williams had taken FERC to court over the whole matter because FERC had refused to reconsider overruling NY to allow the Constitution. Following the Hoopa decision, FERC asked the DC Circuit to toss the case back to them, signaling they are ready to reconsider and overrule NY (see FERC Signals it May Overrule NY to Allow Constitution Pipe).
The Hoopa Valley case has caused panic among Big Green groups (both here and out West). Trout Unlimited, American Rivers and California Trout, all three radical Big Green groups, have filed a petition with the DC Circuit claiming the Hoopa decision prevents states from “imposing mandatory conditions on a project.” That is, states will lose the ability to make changes to project plans.
Energy projects like pipelines take time. The state wants something changed, so they ask the applicant to withdraw the application, make the changes, and resubmit–which has the effect of restarting the one-year clock.
The legal argument against Hoopa is that the court has taken away from the states a powerful and necessary tool to ensure such projects conform to their wishes.
The problem is, of course, that some states (like NY) use the loophole of withdraw/resubmit to delay projects they never intend to allow. They play dirty, like NY. The court senses it and has fixed it with the Hoopa decision. Perhaps the states shouldn’t have abused their power in the first place? Then they would not be in this “untenable” situation.
Environmental groups asked the full D.C. Circuit Monday to reconsider a panel’s decision in a case over the relicensing of a Klamath River dam that said a one-year time limit for states to act on Clean Water Act permit requests doesn’t reset if applications are withdrawn and resubmitted.
Trout Unlimited, American Rivers and California Trout said the January ruling could block states from exercising their rights under the Clean Water Act to either grant or deny certification to federally permitted projects for water quality standards compliance. The ruling could also prevent states from imposing mandatory conditions on a project.
“The decision invalidates the standard procedure to assure meaningful certification requests: namely, withdrawal-and-resubmittal by the applicant,” the groups said.
The D.C. Circuit panel in January vacated Federal Energy Regulatory Commission orders for the relicensing of the Klamath Hydroelectric Project. The appeals court panel said California and Oregon waived their authority to issue water quality permits to Klamath owner PacifiCorp under Section 401 of the CWA, which addresses permit procedures.
According to the panel, PacifiCorp had first filed its permits with California and Oregon regulators in 2006, but the states still hadn’t acted on those requests, which is well in excess of the one-year time limit Section 401 places on states to act on permits before their authority is deemed waived.
The ruling overturned FERC’s 2014 ruling that even though PacifiCorp’s resubmitted applications involved the same project, each application was an independent request subject to a new one-year review period.
The case is rooted in long-running efforts by tribes and environmentalists to eliminate four aging dams on the Klamath River in Oregon and California, which they blame for fish population declines and water quality problems. The California-based Hoopa Valley Tribe, whose fishing rights on the Klamath River date to the 1800s, filed suit in 2014 seeking to force FERC to oversee relicensing of the dams prior to a potential decommission.
The three green groups, intervenors in the appeal, said FERC requires Section 401 requests to be filed “well before it completes its own environmental analysis.”
“Since 1991 the states have relied on this withdrawal-and-resubmittal procedure to complete the records for their Section 401 decisions — to assure that their delegated authority is not ‘meaningless,’” the groups said.
And they said the panel’s decision could impact pending FERC permits for interstate natural gas pipeline certifications or other CWA permit proceedings before other federal agencies.
“The holding would effectively exempt dozens of dams undergoing licensing from compliance with water quality standards, and it would have the same effect on an unknown number of other federal actions, thus raising an exceptionally important question,” the groups said.
FERC did not immediately respond to a request for comment.*
*Law360 (Mar 12, 2019) – Nonprofits Urge DC Circ. To Rethink FERC’s Dam Dispute Win
Petition for rehearing the Hoopa case:
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