Constitution Pipeline has petitioned FERC to declare NY-DEC waived rights to act on its water quality certification application. It’s one compelling story.
Earlier this month, the Constitution Pipeline folks filed a petition with FERC to essentially overrule the New York State Department of Environmental Conservation (DEC) denial of its application for water quality certification. It’s old news but I only recently got around to reading the petition itself, which is one hugely compelling story of just how New York State government works under Andrew “Corruptocrat” Cuomo and how our pipeline friends got totally conned. The best part, though, is how they’re refusing to roll over and are, with this petition, telling the world the sordid details of how they were victimized by the criminal enterprise known as the Cuomo administration.
Back in January, 2016, I chastised my Constitution Pipeline friends for being naive about New York State:
If you’re thinking like me, you’re now wondering why in the name of God hasn’t Williams, the builder of the proposed pipeline, simply gone to FERC or to Federal Court to assert its rights to a waiver, given the total irresponsibility of DEC in this matter, something even the agency has largely acknowledged. Why is Williams allowing a corrupt crime boss governor to dictate delay when there’s an obvious out?
The answer is simple if you’ve every attended the meetings of a local planning board where statutory deadlines on taking action are routinely extended with the cooperation of applicants hoping to get approvals. Requests for additional time to review applications are often justified with complex matters and, even where they’re not justified, most applicants choose prudence in hoping some additional time will allow the board to do its work and ultimately result in approval.
It happens frequently as applications are revised during the review process and the parties both want additional time. There’s also a huge risk in denying a planning board requested additional time in that the board may then simply declare it doesn’t have a complete application and, therefore cannot act, or simply deny the approval for some frivolous reason. Developers want approvals, so they’re generous with time.
There comes a point, though, with some boards where an applicant realizes it’s being played and the game is one of delay in hopes of killing the project. That is the point at which legal counsel asserts the applicant’s right to due process and a decision is forced at the threat of lawsuit. It doesn’t happen all that often, but it does happen and it’s a necessary part of the process if fairness and the rule of law is to have any value whatsoever.
Three months later, on April 22, 2016, DEC denied the application on the basis that Constitution Pipeline had failed to submit certain information despite it having repeatedly done so and having not heard back from DEC in eight months. The Earth Day date was no coincidence, either. It was surely Corruptocrat’s idea and pure Machiavellian with a wink and a nod to the NRDC gang that has a bull ring in his nose.
When this happened and I got over my bad “I told you so” attitude toward the whole thing, I wondered what could be done. The lawsuits in Federal and State court offered glimmers of hope that were quickly dashed leaving but the option of going back to FERC. This was a hardly exciting prospect given the way the Constitution had naively played along with DEC in refiling application`s for water quality certification to effectively extend deadlines, but then Millennium Pipeline showed the way by being proactive and getting FERC to rule DEC had waived its rights in that case. Still, those refiled applications seemed to me to be a big obstacle—until I read the Constitution petition to FERC.
That petition is, in this layman’s judgment, very well done. Here it is with key parts highlighted. It lays out all the horrible details of how DEC jerked the Constitution Pipeline’s chain and led it along to what the company supposed would be an approval only to get kicked in the ribs by a corrupt governor getting his kicks playing Michael Vick. It also makes an extraordinarily compelling case for FERC to step in and stop the abuse bye Corruptocrat.
As an example, how many of you knew Constitution hadn’t heard from DEC for a full eight months before the latter denied water quality certification for inadequate information? How many knew the re-filed application on which DEC finally acted after 361 days was exactly the same as the previous one, which DEC had already found was a complete application and that it had ruled the re-filed application was also complete? Not many, I expect, and it reveals the totally sham exercise the DEC review process became under Corruptocrat and his nasty little true-believer political hatchet-man Basil Seggos (emphasis added):
On August 22, 2013, Constitution submitted a single application for a Section 401 water quality certification to NYSDEC and to the Corps (for a Section 404 permit). On March 4, 2014, the Corps issued its public notice regarding Constitution’s joint application, reflecting its determination that Constitution’s application was complete.
On May 9, 2014, Constitution withdrew and resubmitted its Section 401 application in an effort to cooperate with NYSDEC in good faith. At that point, the application had been pending for almost nine months, and NYSDEC threatened to deny the application if it was not withdrawn and refiled, principally because NYSDEC had expressed disagreement with the proposed route in its comments to FERC, and because Constitution was relying on remote sensed surveys as well as ground based surveys at that time. In Constitution’s view, NYSDEC’s effort to redirect the pipeline route was unreasonable and its refusal to consider remote sensing surveys was arbitrary and capricious.
On July 3, 2014, NYSDEC issued a memorandum to Constitution with recommendations for revised materials in support of Constitution’s refiled application. Constitution revised its application format as requested and continued to supplement its application to provide additional details to NYSDEC as additional survey access was obtained.
On November 13, 2014, Constitution and NYSDEC met to discuss remaining items to be provided, and four days later Constitution submitted additional information to NYSDEC.
On December 24, 2014, NYSDEC issued its first Notice of Complete Application for Constitution’s Section 401 certification.
From December 2, 2014 to July 8, 2015, Constitution had no fewer than forty meetings, conference calls, and field visits with NYSDEC, reflecting Constitution’s high level of responsiveness to NYSDEC requests, whether in writing or during conference calls and meetings.
On March 17, 2015, NYSDEC provided Constitution a list of twenty streams that NYSDEC wanted Constitution to cross via trenchless crossing methods,45 and on April 20, 2015, NYSDEC increased the number of proposed trenchless crossings to 26 streams. Based on proposed re-routes and NYSDEC’s agreement to remove certain streams from consideration, the number of streams for trenchless analysis was subsequently narrowed by agreement to 21.
On April 21, 2015, NYSDEC met with Constitution and provided the draft Section 401 certificate conditions, indicating that it was close to issuing the Section 401 certification. Presumably due to its erroneous perception that Section 401 merely requires a “one-year clock” for acting on an application, NYSDEC asked Constitution to withdraw and resubmit the Section 401 application again. NYSDEC indicated that it needed only a couple of months more to complete its permit process, and that the second withdrawal and refiling of Constitution’s application would not delay the agency’s decision on the Section 401 certification.
In reliance upon NYSDEC’s representations, Constitution withdrew and resubmitted its application a second time, on April 27, 2015. The resubmitted application was unchanged from the application that was previously pending before NYSDEC. That same day, NYSDEC published its second Notice of Complete Application. NYSDEC’s notice announced that the “re-submitted application incorporates all application materials previously provided” and that all previously filed public comments would be considered and thus did not need to be re-submitted.
Two days after the second re-submittal, NYSDEC issued a press release stating, in pertinent part, that:
Due to the extended winter preventing necessary field work by staff, DEC requested additional time to complete its review of any potential impacts on wetlands and water quality … . As requested and to continue the substantial progress reviewing the application and supporting documents that has been made to date, the applicant withdrew and subsequently resubmitted its application with no changes or modifications … the applicant’s withdrawal and resubmission is not expected to unduly delay the agency’s final determination.
The remaining field visits requested by NYSDEC were completed over the following two weeks.
On June 2, 2015, Constitution submitted a “Responsiveness Summary,” which addressed the public comments related to water quality, stream crossings, wetlands, pipeline burial depth, alternatives, cumulative impacts, and blasting, among other issues that were raised during NYSDEC’s public comment periods.
At the end of June 2015, Constitution submitted to NYSDEC a Stream Crossing Feasibility Analysis matrix evaluating the technical feasibility of using trenchless methods on the 21 streams identified by NYSDEC for trenchless crossings. About a week later, on July 8, 2015, NYSDEC indicated that the Stream Crossing Feasibility Analysis matrix was sufficient for review. NYSDEC also indicated that it had no comments on the Responsiveness Summary. Further, NYSDEC told Constitution that it expected to issue the water quality certification by the end of July 2015.
On July 20, 2015, consistent with its previously stated expectation of issuing the Section 401 certification for Constitution by the end of the month, NYSDEC provided a draft of the certification to the Corps and requested that the Corps promptly review and provide its input to NYSDEC. The detailed 21-page draft water quality certification contains conditions that confirm that NYSDEC and Constitution had reached a mutual understanding that the certification would require Constitution, after issuance of the certification, to undertake additional geotechnical analysis prior to construction to confirm the feasibility of the trenchless stream crossings that NYSDEC proposed.
Shortly thereafter, NYSDEC staff advised Constitution that they had prepared the Section 401 certification and had submitted it to NYSDEC’s General Counsel (as of July 31, 2015) for final review and approval. During this same time period, NYSDEC’s General Counsel advised that, subject to approval from the Governor’s office, he believed NYSDEC would issue the permit within several days.
On July 28, 2015, NYSDEC advised Constitution that it had no unresolved substantive issues and was expecting to issue the water quality certification to Constitution by August 7, 2015. Again, on August 3, 2015, NYSDEC informed Constitution in a phone call that it had no remaining issues with respect to Constitution’s application.
Nonetheless, on August 7, 2015, NYSDEC advised Constitution that although it was ready to issue the permits, the Governor’s office was not. In fact, on August 18, 2015, NYSDEC advised Constitution that the permit had been signed by the appropriate NYSDEC representative and was merely awaiting approval from the Governor’s office to be dated and issued. On August 28, 2015, NYSDEC advised Constitution that a public notice for permit issuance had been drafted.
From August 28, 2015 until April 22, 2016, despite repeated inquiries, NYSDEC refused to communicate with Constitution. NYSDEC’s eight-month silence ended only when it issued its letter of April 22, 2016, denying Constitution’s Section 401 certification. Notwithstanding its prior statements to the contrary, NYSDEC’s denial letter claimed that Constitution failed to provide information must be in writing, “must be explicit,” and “must indicate the reasonable date by which the Department is to receive the information.” No such requests were made.
There’s much more but anyone reading the above will realize two things: that, however naive it may have been, Constitution was treated unjustly by a hopelessly corrupt New York State government indebted to special interests and, secondly, that Constitution has an exceptionally good case before FERC.