The New York Dept. of Environmental Conservation (DEC), thoroughly corrupted by, and a political tool of, NY Gov. Andrew Cuomo, continues to have a bad week. Monday we told you about a recent court decision that gives new hope for both the Constitution and Northern Access Pipeline projects (see Recent Fed Court Decision Gives NY Pipes Hope for Bypassing Cuomo). A second court decision has just been issued that allows Northern Access to take a huge step forward.
Three years ago National Fuel Gas Company (NFG) proposed and filed to build the Northern Access Pipeline project, then estimated to cost $455 million (now over $500 million), which includes building 97 miles of new pipeline along a power line corridor from northwestern Pennsylvania up to Erie County, NY. The project also calls for 3 miles of new pipeline further up, in Niagara County, along with a new compressor station in the Town of Pendleton.
The Federal Energy Regulatory Commission (FERC) granted final approval for the project in February 2017 (see NFG’s Northern Access Pipe in NY/PA Gets FERC Approval). However, in April 2017, the DEC–after reviewing a stream crossing application for more than two years–ruled against granting the project a certificate, effectively killing it (see Cuomo’s Corrupt NY DEC Blocks NFG Northern Access Pipeline Permit).
A few weeks later, NFG sued the DEC in the Second Circuit of the U.S. Court of Appeals to overturn the denial (see NFG Sues NY DEC in Fed Court re Northern Access Pipe Rejection). The case was argued in November 2017 (see NFG and NY DEC Go At It in Federal Court Over Pipeline Rejection).
And now, some 15 months after the case was argued, the Second Circuit has ruled, “vacating” (or removing) the DEC’s rejection of the stream crossing permit, sending the application back to the DEC with instructions to explain its decision. Wait, what? Didn’t the DEC explain its decision in this case over the past 15 months?! Apparently not, at least not to the judges’ liking. They told the DEC, verbatim in their order: “[T]he denial letter here insufficiently explains any rational connection between facts found and choices made….Specifically, there are no record citations in the denial letter, and there are no citations to specific projects or studies the department may have considered.” Talk about being slapped!
This still isn’t a “you must issue the certificate” instruction from the court to the DEC, but it comes close.
The Second Circuit on Tuesday overturned New York’s decision to deny National Fuel Gas Supply Corp. a water quality certification for a proposed $455 million natural gas pipeline, saying the state’s environmental watchdog inadequately explained its decision.
The three-judge panel didn’t say the New York Department of Environmental Conservation got it wrong, just that the agency failed to back up its assertions that the roughly 100-mile Northern Access Pipeline project by National Fuel and its unit Empire Pipeline Inc. would violate the state’s environmental standards.
“Although this is a close case, the denial letter here insufficiently explains any rational connection between facts found and choices made,” the judges said.
They acknowledged that as judges they don’t have the expertise the DEC does in making permitting decisions, but they said they are not able to look at the facts in the record and see the connection to the agency’s conclusion that the project would disturb various rivers in the state.
“There are no record citations in the denial letter and there are no citations to specific projects or studies the department may have considered,” the panel said.
In addition, the panel said the department inappropriately based its denial “on considerations outside of petitioners’ proposal, which included discussion about permanent culverts, wet crossings and intake pits.
“[That] shows either a misunderstanding of the record or possibly that when it was considering the pipeline the department relied on determinations made with respect to other pipeline projects,” the panel said.
The court vacated the denial and remanded the case to the DEC “to more clearly articulate its basis for the denial and how that basis is connected to information in the existing administrative record.”
The DEC in April 2017 blocked the Northern Access Pipeline project, which would carry fracked gas from Pennsylvania to Canada via New York, saying it failed to meet the state’s water quality standards. The company appealed and told the Second Circuit that the department improperly rejected its application.
National Fuel spokesperson Karen L. Merkel praised the appeals court’s decision.
“In spite of thousands of pages of technical analysis, months of collaboration and compromise and a proven track record of responsible development, New York attempted, without basis in fact, to raise the hurdle for pipeline construction to a level that is not clearly defined and is inconsistent with the standards applied to all other public infrastructure projects,” she said in a statement Tuesday.
DEC spokesperson Erica Ringewald said the department is reviewing the decision.
“DEC is considering all options to defend our decision and our authority to protect New York State’s water quality resources,” she said in a statement Tuesday.
Separately, the Federal Energy Regulatory Commission has found that the DEC waived their authority to deny a Clean Water Act permit for the pipeline project by blowing a one-year deadline.
The Second Circuit said the companies should take up the matter with FERC at this point.*
While this is certainly progress, and the DEC has had their lunch handed to them by the Second Circuit judges, it may all be academic anyway. The DEC has already forfeited their right to rule on a water certificate for the project. How? On what basis? That’s what our article from Monday addresses.
A case decided on Jan. 25 in the DC Circuit Court of Appeals, which technically has nothing to do with the Northern Access Pipeline project, nonetheless sets a precedent that can be used for the project. That case, Hoopa Valley Tribe v. FERC, said that if a state takes more than one year to review a stream/river crossing permit for any reason (the time the federal statute gives them), the state has automatically waived their right to block the project.
In the Hoopa case, it was a hydroelectric dam project. The DC Circuit case also prohibits the sneaky trick of a state recommending to a project they withdraw a water certificate application and refile it to give the state more time to review, resetting the clock an additional year. The DC Circuit said nope, that won’t cut it. States have exactly one year under the law, and no manner of flip flopping and withdrawing applications and refiling nor any other shenanigans will pass muster.
So, in the end, NY, which took several years to review the Northern Access application, has automatically forfeited their right to weigh in on the application–by default. Case closed. This second decision by the Second Circuit is interesting and helpful (from a PR standpoint), but in the end, we expect NFG will use the DC Circuit case to close the door on the corrupt NY DEC.
*Law360 (Feb 5, 2019) – 2nd Circ. Vacates NY’s Permit Denial For $455M Pipeline
Copy of Second Circuit decision vacating DEC’s rejection of Northern Access Pipeline water certificate:
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