During the signing ceremony on Wednesday when President Trump signed two executive orders to make it harder for states to block new pipelines for political reasons, Trump revealed part of the motivation for the EOs when he said, “And also, in New York, they’re paying tremendous amounts of money more for energy to heat their homes because New York State blocked a permit to build the Constitution Pipeline.” So we ask the question, will Trump’s EO actually help get the Constitution built?
We brought you news about the EOs yesterday, including the full text for both (see Trump Signs Executive Order Making it Harder to Block Pipes). As we said yesterday, the EOs are no silver bullet that will magically make projects like the Constitution get built–but the EOs are a big step in the right direction.
Clearly Andy Cuomo was threatened by Trump’s EOs and believes they may lead to the Constitution getting built, because he felt it necessary to respond like a petulant baby. Cuomo tweeted: “President Trump’s Executive Order is a gross overreach of federal authority that undermines New York’s ability to protect our water quality and our environment. Any efforts to curb this right to protect our residents will be fought tooth and nail.” So right there, that tells you that Cuomo believes the EOs may tip the balance against him and his illegal blockage of the Constitution. Which we take as good news.
Cuomo has no one to blame but himself for this turn of events. Cuomo forced the NY Dept. of Environmental Conservation to refuse issuing a “401 certificate” under the federal Clean Water Act (CWA) to allow the Constitution to cross streams in the state (see NY Gov. Cuomo Refuses to Grant Permits for Constitution Pipeline). It was a purely political move–there was no scientific/environmental reason for refusing the project.
The CWA allows states to “weigh in” with their concerns over infrastructure projects like pipelines, allowing them to have a say in the route of the pipeline, requiring certain conditions be met, etc. What the CWA does not do is allow states to reject projects out-of-hand for political reasons. These projects are federally permitted (by the Federal Energy Regulatory Commission), specifically to avoid one state from blocking projects that can benefit other states. The CWA 401 statute is meant to give states a say, but not allow states to resort to NIMBYism. Yet that’s what New York and Cuomo have done. They intentionally pushed the 401 statute to an extreme, bending it and using it in ways never intended.
So now, via EO, Trump is asking the EPA to tweak and rewrite the 401 statute to close loopholes people like Cuomo in NY (and kooky Gov. Jay Inslee from Washington State) are abusing. It is a matter of justice, to repair what the abusers have twisted and mangled.
We have two articles dealing with the EOs and their impact on the Constitution Pipeline. The first, from the Daily Caller, focuses on the coming battle between Trump and Cuomo over the Constitution. The second article, from the left-leaning PBS in Harrisburg, also tackles the coming battle over the Constitution, and whether the EOs will actually help.
From the Daily Caller:
President Donald Trump’s executive order to expedite oil and natural gas pipelines could spark another legal battle against Democratic New York Gov. Andrew Cuomo’s administration.
Trump pulled no punches against New York when he signed executive orders to expedite pipeline projects Wednesday afternoon. The move sparked a sharp rebuke from Cuomo, who threatened to fight “tooth and nail” against permitting reforms.
“We need help with New York,” Trump said Wednesday at an International Union of Operating Engineers’ training center near Houston.
“New York is hurting the country because they’re not allowing us to get those pipelines through, and that’s why they’re paying so much for their heating and all of the things that energy and our energy produces,” Trump said. “So hopefully they can come on board and get in line with what’s happening.”
The orders are aimed at expediting oil and gas pipeline approvals, including asking the Environmental Protection Agency (EPA) to update guidance regarding state permitting authority under the Clean Water Act (CWA).
The goal here is to keep some states, like New York and Washington, from using CWA permitting to kill major energy projects. Trump specifically called out New York’s blocking of the Constitution natural gas pipeline.
“And also, in New York, they’re paying tremendous amounts of money more for energy to heat their homes because New York State blocked a permit to build the Constitution Pipeline,” Trump said.
New York and the Constitution pipeline’s developers have been locked in a legal battle for the last three years after the state denied the project a CWA permit. The pipeline will bring natural gas from producers in Pennsylvania to upstate New York, and is supported by labor unions.
Cuomo’s administration denied permits for Constitution and other pipelines on environmental grounds, and instead is using his own version of the Green New Deal to get 100 percent carbon-free electricity by 2040.
Cuomo said he would fight Trump’s permitting reforms “tooth and nail.”
“President Trump’s Executive Order is a gross overreach of federal authority that undermines New York’s ability to protect our water quality and our environment,” Cuomo said in a statement Wednesday. “Any efforts to curb this right to protect our residents will be fought tooth and nail.”
Trump is looking to set stricter timelines and narrow the scope of review states can use to evaluate pipelines and other projects that need CWA permits. For example, New York rejected the Constitution pipeline 360 days into its review.
New York rejected a CWA permit Valley Lateral pipeline in 2017 over the impacts it could have on climate change, which, of course, has nothing to do with water quality. Trump’s order could prevent states from using such an expansive standard for review.
In the meantime, however, Cuomo’s pipeline rejections have strained gas supplies in the northeastern U.S., including New York and New England. Supplies are so constrained in New York, for example, that a moratorium on new gas hook-ups hit Westchester County in March, worrying local officials that new development would collapse.
“This obstruction does not just hurt families and workers like you; it undermines our independence and national security,” Trump said, mentioning how New England paid much more for gas this winter because of its lack of pipelines. (1)
From PBS’ WITF in Harrisburg:
President Donald Trump wants to make it easier for companies to transport natural gas from places like Pennsylvania to the Northeast.
He signed an executive order this week that would speed up pipeline permitting. It takes aim at states like New York that have blocked pipeline projects that would carry Marcellus Shale gas to markets in the Northeast, where gas is not always readily available. Trump’s order also opens the door to natural gas being transported by rail.
“Too often, badly needed energy infrastructure is being held back by special interest groups, entrenched bureaucracies and radical activists,” the president told a crowd gathered Wednesday at an International Union of Operating Engineers facility in Crosby, Texas before he signed several executive orders related to oil and gas.
Trump’s directive stems in part from New York’s denial of a water quality permit for the Constitution Pipeline, among other projects blocked by states under the federal Clean Water Act.
New York in 2016 halted the Constitution project, which would carry gas north from Susquehanna County. The fight over the pipeline continues to play out in court and among regulatory agencies.
In his executive order, Trump directs the Environmental Protection Agency to issue new permitting guidance to states. He did not explicitly say how states’ authority should change, but he said the EPA’s review should focus on “the need to promote timely Federal-State cooperation and collaboration” and “the appropriate scope of water quality reviews.”
Trump also asked the EPA to go a step further by formally revising its rules surrounding that portion of the Clean Water Act.
Pennsylvania’s natural gas industry welcomed Trump’s order.
“If you have the rules in place where the game is fair in terms of siting pipelines and critical infrastructure projects, then I think it opens the door for new development,” said David Spigelmyer, president of the Marcellus Shale Coalition, an industry trade group.
Still, the fate of the Constitution Pipeline is unclear.
Williams, the lead developer of the project, said in a statement that it “supports efforts to foster coordination, predictability and transparency in federal environmental review and permitting processes for energy infrastructure projects.” The company, however, declined to comment specifically on the president’s order and what it means for the future of the pipeline.
Mark Szybist, a senior attorney for the Natural Resources Defense Council, said he anticipates the legal battle over the pipeline will continue following Trump’s order.
“I suspect that was at least the intent of this executive order, to change the outcome of projects like the Constitution Pipeline,” he said. “How well that intent will succeed I think remains to be seen.”
He pointed to a statement from New York’s governor, Democrat Andrew Cuomo, who called Trump’s executive order a “gross overreach” of federal power.
“States must have a role in the process for siting energy infrastructure like pipelines, and any efforts to curb this right to protect our residents will be fought tooth and nail,” Cuomo said.
Szybist also questioned to what extent pipeline permitting in Pennsylvania will be affected by the order, given that the state has not experienced some of the same high-profile fights over pipelines as its neighbors that have denied projects under the Clean Water Act. Nevertheless, he said it would be concerning if the order changes the way Pennsylvania’s Department of Environmental Protection issues water quality certifications, should it result in less protection.
For years, the gas industry in Pennsylvania has sought to build more pipelines to reach New England, where residents tend to face higher heating prices than the rest of the nation and rely more on fuels like heating oil.
Spigelmyer said some in the region last year used gas supplied by a ship that anchored in Boston Harbor. The gas it carried came from Russia.
“That’s not a good thing when you’re bolstering your nation’s energy supply from out of the country,” he said.
As an alternative to transporting gas by pipeline, Trump’s order also directs the U.S. Department of Transportation to propose a rule allowing liquefied natural gas to be carried by rail.
For that to happen, gas would need to be cooled until it liquefies, at which point it would be carried on tank cars and delivered to a facility that would heat it again to return to gas form.
Such a form of transportation is legal in Canada, and trains already carry liquefied gas on a limited basis in Alaska and Florida, according to Bloomberg.
“We move oil that way, we move other liquids that way,” Spigelmyer said. “It is a safe form of transportation, and it is an alternate form of transportation that also makes sense.
Still, he said, pipelines are the cheapest and most efficient way to move natural gas.
If gas-by-rail becomes a reality, it will likely draw an outcry over the potential for derailments, given that trains have crashed while carrying crude oil from North Dakota. One such derailment that occurred in Canada in 2013 resulted in a fiery explosion that killed 47 people.
“My guess is there would be a huge amount of pushback from communities that would be affected by those kinds of projects,” Szybist said, adding that he wondered whether the proposal is meant to prompt states to view pipelines more favorably. (2)
MDN’s take: We’re encouraged, very encouraged, by Trump’s EO. But we’re under no illusion that the EO means the Constitution Pipeline will roar back to life any time soon. This is still a years-long battle. In the end, we will prevail. The pipeline will get built. But not before more court battles and lunatic protesters try to block it.
(1) Washington (DC) Daily Caller (Apr 11, 2019) – Trump and Andrew Cuomo Prepare for a War over Natural Gas Pipelines
(2) Harrisburg (PA) WITF PBS (Apr 11, 2019) – Trump executive order could affect future of stalled Constitution Pipeline
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