Editor & Publisher, Marcellus Drilling News (MDN)
Cuomo’s DEC played the delay game with the permitting process of the Constitution Pipeline and won; FERC says its hands are tied and will not overrule.
This is a bitter and sad day. The five Commissioners of the Federal Energy Regulatory Commission (FERC) released a decision yesterday (copy below) that FERC will not overrule an illegal decision by the corrupt Cuomo Dept. of Environmental Conservation (DEC) to block construction of the Constitution Pipeline (which FERC approved in 2014). Is this truly “lights out” for the Constitution? It would seem so.
Cuomo’s DEC took more than two years to evaluate and eventually reject the Constitution Pipeline–a $683 million, 124-mile pipeline from Susquehanna County, PA to Schoharie County, NY to move Marcellus gas into NY and New England. Constitution went to federal court to overturn that decision, but ultimately failed last August. But then a ray of hope appeared in the galaxy. FERC overruled NY DEC in another pipeline case, so Constitution filed a request with FERC to overrule NY DEC in their case. FERC wanted to overrule DEC again.
You can read between the lines and detect it in yesterday’s decision. But ultimately FERC could not overrule the DEC because the DEC rejected the permit with four days left ticking on a one-year clock (we explain it all below).
So this question: Are all avenues exhausted for Constitution? Is the ray of hope in the galaxy now extinguished? Will evil (i.e., the Cuomo-corrupted DEC) rule the galaxy? According to Williams, Constitution’s builder, the answer is an emphatic, “NO!” Williams will first file with FERC, asking them to rehear their decision (which we don’t think is likely). If FERC denies the rehearing request, Williams is prepared to appeal FERC’s decision to federal court.
Let’s begin with how mainstream (biased) news outlets are reporting yesterday’s FERC decision:
The Federal Energy Regulatory Commission has refused to grant a ruling that would have paved the way for construction of the Constitution Pipeline — a proposed 124-mile natural gas line that would cross Broome, Chenango, Delaware and Schoharie counties.
Constitution Pipeline Company LLC filed a petition with FERC on Oct. 11, asking the commission to find that the state Department of Environmental Conservation waived its authority to issue a water quality certification for the pipeline project by failing to act within a statutory time limit.
FERC issued an order on Thursday, denying the petition.
The $1 billion natural gas transmission project — designed to transport shale gas harvested in northeast Pennsylvania to a compressor station in Schoharie County — has been delayed since April 2016. That is when the planners of the pipeline were told by the DEC that its water permits were denied by the state agency.
Constitution sued to overturn the decision, but the U.S. Court of Appeals for the Second Circuit upheld the DEC, stating the plaintiffs had “no basis” to reverse the decision.
According to a FERC document, Constitution argued that DEC had exceeded the one year allowed for acting on applications because the cumulative time period of three different applications — two withdrawn before their deadlines — amounted to more than a year.
FERC ruled that new deadlines started with each application, and that DEC’s action with four days left before the deadline for the most recent application was valid.
So what really happened? In reading through the decision, it appears FERC would have liked to overrule NY DEC–but the Constitution fell into the DEC’s trap of restarting the clock a second time. States have one year to rule on requests for federal water crossing permits.
When NY’s time was up, the DEC very craftily, batting their eyes, asked the Constitution to refile the request, to give DEC more time. Ya know, just to cross all those T’s and dot all those I’s. DEC put on its best perfume and lipstick (hiking their skirt real high) lulling the Constitution into a fatal mistake–the mistake of thinking NY was working in good faith and would say “yes” to the project. Constitution fell for it and refiled a second time.
When they did so, the clock started ticking all over again, for another full one year period. When the DEC finally pounced, revealing their treachery, they issued a denial four days before the one year expiration of the second “application” by Constitution. Because DEC technically, according to the letter of the law, was within the one-year time limit, FERC said their hands are tied. They can’t overrule the DEC.
“We reiterate that once an application is withdrawn, no matter how formulaic or perfunctory the process of withdrawal and resubmission is, the refiling of an application restarts the one-year waiver period under section 401,” FERC said in denying Constitution’s petition. “…The statute speaks solely to a state’s action or inaction, not to the repeated withdrawal and resubmission of applications. By withdrawing its applications before a year had passed, and by presenting New York DEC with new applications, Constitution gave New York DEC new deadlines.”
Constitution had also urged FERC in its petition to look beyond the one-year test, arguing that the entire process at DEC amounted to “coercive state action” and “gaming” to delay the project. It requested that the Commission determine a reasonable period of time to be less than one year based on DEC’s actions and statements.
“We decline to do so because entertaining, on a case-by-case basis, challenges to a certifying agency’s processing of a water quality certification would create uncertainty for both state certifying agencies and applicants, and is contrary to Commission precedent in both hydroelectric and natural gas proceedings,” FERC said.
So the federal court previously rejected Constitution’s request to overrule NY DEC, and now FERC has rejected Constitution’s request to overrule NY DEC. It certainly seems to us this is it. The end.
But not so fast. MDN reached out to Christopher Stockton, spokesman for Williams, asking for a reaction to yesterday’s decision. Stockton sent us this comment via email:
While the decision by the FERC to deny our petition is disappointing, we firmly believe that the Clean Water Act does more than impose a strict “one-year test” on state agencies and, accordingly, we believe the order erred by failing to find that Section 401 was waived due to New York failing to act within a “reasonable period of time” on Constitution’s Clean Water Act application. We are planning to seek rehearing and, if necessary, appeal of this decision in order to continue to develop this much-needed infrastructure project designed to bring natural gas to a region of the country that has recently experienced demand resulting in the highest natural gas prices in the world. Constitution remains committed to constructing and placing into operation this critical piece of energy infrastructure.”
So there you have it. Williams’ angle is that it’s not just a strict one-year time limit, but a test of reasonableness. If the later, NY DEC certainly failed big-time. Let’s hope Williams is able to prevail, in the end. We’re clutching to that ray of hope in the galaxy.
Here is the full copy of yesterday’s FERC decision.