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FERC Destroys Opposition to Constitution Pipeline

constitution pipeline

Tom Shepstone
Natural Gas NOW


A fractivist list of complaints and request for a FERC rehearing on the Constitution Pipeline has been totally rejected with stunning clarity.

Several fractivist organizations funded by the usual suspects threw a shovelful of cow manure agains the wall in FERC’s direction, hoping some of it would stick, but nothing did. FERC rejected the fractivist appeal for a rehearing on the Constitution Pipeline in comprehensive fashion last week.

Constitution PipelineThe FERC rejection of the request for a rehearing on the Constitution Pipeline was stunning in the way it methodically dispensed with the arguments of Damascus Citizens for Sustainability, the Catskill Mountainkeeper, the Delaware Riverkeeper, the Allegheny Defense Project and Stop The Pipeline organizations, among others, all of whom are funded by the small two or three fractivist financiers (Heinz Endowments, William Penn Foundation, et al). The clarity with which FERC dismantled the fractivist arguments was a thing to behold and it’s hard to know what is more amazing; the ridiculous array of arguments pitched against the pipeline or the excellent manner in which they were destroyed.

Constitution Pipeline

A completed pipeline (Source: FERC)

The following are some of the best illustrations:

We affirm our finding in the 2014 Order that authorizing the Constitution Pipeline Project is required by the public convenience and necessity. As explained in the 2014 Order, under the Certificate Policy Statement the Commission evaluates a proposed project by balancing the evidence of public benefits to be achieved against any residual adverse effects on the economic interests of: (1) the applicant’s existing customers; (2) existing pipelines in the market and their captive customers; and (3) landowners and communities affected by the construction.

Here, we found a strong showing of public benefit based on the fact that Constitution had executed binding precedent agreements for firm service using 100 percent of the design capacity of the pipeline project. Stop the Pipeline’s various claims that these contracts are insufficient to establish market need under the Certificate Policy Statement are without support…

Contrary to Stop the Pipeline’s claim, the fact that a pipeline is only required to ship up to its shippers’ maximum contract quantities does not demonstrate that the project is not fully subscribed.  When a shipper contracts for firm transportation service with a pipeline, the shipper is guaranteed, and must pay reservation charges associated with, its contract quantity at the designated primary receipt and delivery points.  In other words, the capacity is reserved for the use of the shipper and cannot be resold to another shipper on a firm basis.  Of course, a shipper is not required to, and rarely does, use its full contracted capacity every day of the year.  A shipper contracts for firm service in anticipation of its peak needs, notwithstanding that on a daily, monthly, and/or seasonal basis, the shipper’s load requirements will vary…

We disagree with the parties’ assertion that the plain language of the Clean Water Act erects an absolute bar to Commission action on a project application prior to a state’s issuance of a WQC.  Section 401(a)(1) of the Clean Water Act provides that no federal “license or permit shall be granted until the” state certifies that any activity “which may result in a discharge into the navigable waters” will comply with the applicable provisions of the Act.

The Commission’s conditional approval of the projects does not conflict with this language…Catskill Mountainkeeper’s argument that because WQC conditions must become part of the certificate, the WQC must precede the certificate is unavailing.  By the terms of section 401(d) of the Clean Water Act, any limitations or monitoring prescribed in the WQC to ensure that the applicant will comply with federal or state standards under the Clean Water Act shall become conditions of the federal license or permit and thus control the construction and operation of the project.  Therefore, our decision to issue a conditional certificate in no way prevents any later-adopted WQC conditions from applying to the projects.

Catskill Mountainkeeper is mistaken in asserting that the Commission’s customary language that “[a]ny state or local permits issued with respect to the jurisdictional facilities authorized herein must be consistent with the conditions of this certificate” is an attempt to override section 401 of the Clean Water Act.

A section 401 WQC, though issued by the state, is an exercise of federal authority rather than state or local authority, and thus not subject to the cited admonition.

Nor did the Commission violate the requirement in section 102(2) of NEPA that the lead agency must consult with, and obtain comments of, other agencies before issuing the final EIS. The Commission did in fact request and receive comments from NYSDEC before the final EIS issued. If and when NYSDEC issues a WQC for the projects, Constitution will be required to comply with the requirements of the WQC…

The Commission’s siting decisions regarding pending and future natural gas pipeline facilities will be in response to proposals by private industry, and the Commission has no way to accurately predict the scale, timing, and location of projects, much less the type of facilities that will be proposed.

Any broad, regional environmental analysis would “be little more than a study . . . containing estimates of potential development and attendant environmental consequences,” and could not present “a credible forward look” that would be “a useful tool for basic program planning.” In these circumstances, the Commission’s longstanding practice to conduct an environmental review for each proposed project, or a number of proposed projects that are interdependent or otherwise interrelated or connected, “should facilitate, not impede, adequate environmental assessment.”

Contrary to Catskill Mountainkeeper’s assertion, the final EIS discussed impacts on interior forest habitat and acknowledged that the proposed pipeline project would result in some permanent loss of interior forest wildlife habitat.

 Moreover, while Constitution reduced impacts by routing the proposed pipeline to minimize sensitive areas and reduced the construction right-of-way through wetlands and interior forests, these were not the only measures we imposed to mitigate impacts.  Environmental Condition 23 requires that Constitution finalize its Migratory Bird and Upland Forest Plan in consultation with FWS, NYSDEC, the Pennsylvania Department of Conservation and Natural Resources, and the Pennsylvania Game Commission.  This plan is required to include compensatory mitigation to offset the unavoidable impacts on upland interior forests, including allocation of funds for acquisition of lands for conservation and/or restoration, grants for habitat conservation, and long-term management of lands for migratory birds.  Further, Environmental Condition 26 requires that Constitution employ qualified personnel to conduct nest surveys within areas proposed for any tree clearing between April 1 and August 31 to detect birds of conservation concern.  Environmental Condition 26 also requires Constitution to provide a buffer around any active nests to avoid potential impacts until the young have fledged.  The final EIS concluded, and we agree, that vegetation resources and wildlife resources are not expected to be significantly impacted given these avoidance and mitigation measures, as well as the amount of similar adjacent habitat available, and the applicants’ adherence to their ECPs and the Commission’s Plan and Procedures.

In the end, FERC rejected every one of the fractivist arguments against the Constitution Pipeline, and all for good reason. What reading the FERC order vividly demonstrates, though, are the coordinated and insidious tactics of fractivism, which consist in making every conceivable argument against a pipeline, no matter how far-fetched, for the purposes of clogging the system and delaying decisions. It’s a form of racketeering and didn’t work in this case. It’s also worth noting FERC made a point of stating the 401 Water Quality Certification on which Andrew Cuomo is deliberately sitting is an exercise of Federal authority, not a state prerogative, meaning the decision can be taken away from him if he doesn’t act. Let’s hope the agency means it.

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3 thoughts on “FERC Destroys Opposition to Constitution Pipeline

  1. http://goinggreen.recorder.com/2016/02/01/warren-calls-out-ferc-on-pipeline/

    What’s going on with pipelines and allegations about FERC is frankly absurd. The groups who are opposed have a right to be in opposition. I don’t see how this gives them the right to misinform, pretend expertise to the public where the have none via all kinds of informational forums outside the process, plus malign FERC and every company that has a proposed project. Nor do I see how this behavior in any way at all assists those effected by proposals in participating in the FERC process in a meaningful way at all.

  2. It’s time for the FERC to pry control of the Constitution Pipeline from the claws of Cuomo and his radical anti-fossil fuel cronies. The Commerce Clause in Article One of the U.S. Constitution was designed to prevent the obstruction of interstate commerce that is being committed by the Governor.

  3. Pingback: Enough Time Already on Constitution Pipeline, Mr. Seggos!

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