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The Fight is Not Over: Constitution Pipeline Appeals to U.S. Supreme Court

delaware riverkeeper - Jim Willis reports

Jim Willis
Editor & Publisher, Marcellus Drilling News (MDN)

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Refusing to give up, the Constitution Pipeline filed an appeal to the U.S. Supreme Court to overturn the corrupt NY DEC ruling against the project and uphold the law.

“The reports of my death have been greatly exaggerated” – Mark Twain (and Constitution Pipeline). Last week it was our duty to report the sad news that the Federal Energy Regulatory Commission found they could not override the New York Dept. of Environmental Conservation’s (DEC) decision (under pressure from the corrupt Andrew Cuomo) to block the Constitution Pipeline. FERC found, after an exhaustive investigation, that the DEC had suckered Constitution into refiling a second time, restarting the one-year clock under which NY could render a decision about the pipeline.

With four days left on the reset clock, DEC issued a denial of Constitution’s request for a federal water crossing permit. Constitution went to the U.S. Court of Appeals for the Second Circuit to overturn DEC’s decision, but ultimately failed. With FERC refusing to act, we asked the question last week, Is this the death of the $683 million, 124-mile pipeline from Susquehanna County, PA to Schoharie County, NY to move Marcellus gas into NY and New England?

We reached out to Williams and MDN was first to report that Williams said they would continue to fight. And so they have! In a statement issued Tuesday, Williams (i.e. Constitution Pipeline) said they have appealed the Second Circuit’s decision to the U.S. Supreme Court (full copy of the appeal below).

Williams maintains if the Second Circuit’s decision upholding the corrupt DEC is allowed to stand, it sets a dangerous precedent for rogue states like NY who refuse to obey the strict interpretation of the law. That is, it allows states like NY to simply reinterpret the law any old which way they want. And that can’t stand.

US Supreme Court in Washington, DC.

To be sure, this is a long shot. Thousands of petitions are filed each year with the Supremes, and they select a relative handful. If the Supremes accept the case, it’s not a foregone conclusion that they will overrule the Second Circuit decision–but at least Constitution is still alive. If the Supremes reject the appeal, we don’t see how the Constitution gets built. At that point, it will be officially, finally dead. That’s our take. So now we wait.

Here’s the statement from Williams/Constitution, from Tuesday:

Constitution Pipeline today petitioned the U.S. Supreme Court to review the judgement of the U.S. Court of Appeals for the Second Circuit, which on Aug. 18, 2017, denied the Constitution’s legal challenge to New York State DEC’s denial of the company’s application for a Water Quality Certification. The U.S. Court of Appeals for the Second Circuit denied Constitution’s rehearing petition on Oct. 19, 2017.

Constitution contends that the Second Circuit’s decision conflicts with the decisions of the U.S. Supreme Court and federal Courts of Appeals on an important question of federal law that has enormous implications for the development of critical energy infrastructure in this nation.

Company Perspective

The project sponsors said in a statement:

“We continue to believe that this federally-approved project has been unjustly prohibited from construction. The Constitution Pipeline is much-needed energy infrastructure designed to bring natural gas to a region of the country that has recently experienced the highest natural gas prices in the world.”

“Without a ruling from the U.S. Supreme Court, there is a serious risk that states will use the Second Circuit’s ruling to abuse their narrowly circumscribed CWA Section 401 authority in their efforts to frustrate interstate natural gas pipeline development at the expense of vital national interests.”

Here’s something you don’t read every day–an appeal filed with the U.S. Supreme Court:

Click to read full appeal

Editor’s Note: A few portions of the appeal are well worth reading. First, there is the question presented, which neatly summarizes the problem:

Whether a state’s denial of a federally-approved interstate natural gas pipeline’s request for certi cation under Section 401 of the CWA on the basis of purportedly receiving insuf cient information regarding alternative routes for the interstate natural gas pipeline exceeds the state’s limited authority under the Energy Policy Act of 2005 and the Natural Gas Act of 1938, interferes with FERC’s exclusive jurisdiction over the routing of interstate natural gas pipelines when consideration of alternative routes is explicitly not part of the state’s federally-approved water quality standards, and violates fundamental principles of federal supremacy arising from the Constitution’s Supremacy Clause?

That’s a very interesting point; whether or not states are allowed to control pipeline routes, which is precisely what New York State’s DEC was doing, of course, with the caveat that Corruptocrat made them do it. The appeal nicely expands on that point with this:

Consistent with the express intent of the NGA to federalize the regulation of interstate natural gas pipelines, the Federal Energy Regulatory Commission (“FERC”) conducted a comprehensive thirty-one month review process that included consideration of nine separate letters submitted by the New York State Department of Environmental Conservation (“NYSDEC”) addressing in detail NYSDEC’s objections to the proposed route for Constitution’s proposed interstate natural gas pipeline project (“Interstate Project”). FERC then issued a Certificate of Public Convenience and Necessity (“Certificate Order”) determining that Constitution’s Interstate Project was in the national public interest.

It is noteworthy that NYSDEC did not le an appeal challenging FERC’s issuance of the Certi cate Order. Instead, NYSDEC attempted to bootstrap its limited authority to review interstate natural gas projects for compliance with federally-approved water quality standards under Section 401 of the CWA by denying a water quality certi cation (“Section 401 Certi cation”). Although a state is within its authority to deny a Section 401 Certi cation when its denial is timely and based on federally-approved water quality standards, here NYSDEC notably delayed issuing a denial until Earth Day (April 22, 2016), justifying its ultimate denial (the “Denial”) on, inter alia, an alleged failure to provide NYSDEC suf cient information about an alternative route for the Interstate Project—an issue over which FERC has exclusive authority. It is undisputed that the basis for this denial is not limited to an application of federally-approved water quality standards. Nor is it disputed that Congress provided FERC with exclusive authority over the routing of interstate natural gas pipelines.

The NGA federalizes the regulation of interstate natural gas pipelines, though it employs narrowly tailored state determinations as part of the federally-mandated process. These determinations are linked to speci c state ndings under the CWA, the Coastal Zone Management Act, and the Clean Air Act… By overstepping their carefully circumscribed roles under the NGA in order to block interstate pipelines, states, like New York here, would frustrate Congress’ express intent in passing the Energy Policy Act of 2005, which was to “provide a comprehensive national energy policy that balances domestic energy production with conservation and ef ciency efforts to enhance the security of the United States and decrease dependence on foreign sources of fuel,”…

The last point can scarcely be overstated. Domestic energy development and a robust energy supply with reliable transportation infrastructure (including interstate natural gas pipelines) are vitally important to our national security interests…

If not corrected, this decision will have far-reaching implications for all NGA infrastructure projects. Left unchecked, states like New York, with an intent to superimpose their political, parochial interests over the interests of the nation, will use the Second Circuit’s expanded reading of their narrowly tailored rights under Section 401 of the CWA to undermine FERC’s routing determinations by requiring applicants to consider “a possible alternative route that would result in less substantial impact,”…

This would effectively allow states to block federally reviewed and approved interstate natural gas pipelines for reasons entirely unrelated to the limited role Congress has provided to states in the NGA’s regulatory scheme. Indeed, NYSDEC has effectively instituted a blockade of FERC-approved natural gas pipelines as evidenced by its recent denials of Section 401 water quality certifications for the Interstate Project and two other projects (Millennium Pipeline Company’s Valley Lateral Project and National Fuel Gas Supply Corporation’s and Empire Pipeline, Inc.’s Northern Access Project).

The Second Circuit’s decision eviscerates the carefully delineated boundaries of cooperative federalism established by Congress in the NGA, as amended by the Energy Policy Act of 2005, and presents a profound threat to our national security by allowing states to intrude upon FERC’s exclusive jurisdiction in an effort to prevent development of critical natural gas energy infrastructure, which, in turn, will impair the development of United States energy resources, a key priority for our nation’s national security.

Good stuff, it seems to me.

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3 thoughts on “The Fight is Not Over: Constitution Pipeline Appeals to U.S. Supreme Court

  1. This filing is timely. If the Supreme Court hears the case they judges will surely ask about the impact of NY’s actions, in which case the recent spike in NG prices in CT, especially when compared to prices in surrounding regions, should lend significant weight to plaintiff’s case. Especially in light of the recent remedy to New England gas shortages -imports from Russia.

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