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New York DEC 401 Certification Authority on the Precipice?

delaware riverkeeper - Jim Willis reports

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


New York DEC has, once again, been put on notice from a federal court, ruling FERC has the right to issue 401 certifications regardless of their denials.

A new threat against the New York Dept. of Environmental Conservation’s authority over pipeline projects is coming from yet another federal court. Last month MDN brought you the huge news that the U.S. Court of Appeals for the District of Columbia Circuit dismissed a lawsuit brought by the Millennium Pipeline against the NY DEC for delaying a decision to authorize a 9-mile pipeline Millennium wants to build from their main pipeline to an under-construction natgas-fired electric plant in Orange County, NY, called the Valley Lateral Project.

Which may, at first blush, seem like a defeat. It was anything but a defeat. The justices, in their decision, said that the Federal Energy Regulatory Commission (FERC) has the right and responsibility to step back in and issue the water crossing permits themselves, overruling the NY DEC, if FERC so chooses.

new york dec

Is New York State DEC a good cop gone bad under Governor Corruptocrat?

A second court case in a different federal court, the U.S. Court of Appeals for the 2nd Circuit, is now progressing. That case was brought by National Fuel Gas Company in April against the NY DEC for a similar reason: delay and denial of federal 401 stream crossing permits for NFG’s Northern Access Pipeline project. That case is now advancing and the lawyers for NFG are quoting the decision from the Millennium case as precedent for a ruling by the 2nd Circuit Court that the DEC cannot arbitrarily stop a federally-permitted pipeline project.

A battle between the natural gas industry and the state of New York heated up in court on Friday over what the industry argues is a misappropriation of state authority to block pipeline development.

A number of national industry groups filed a brief in the U.S. Court of Appeals for the 2nd Circuit, supporting a lawsuit filed against the Empire State by the National Fuel Supply Corporation and Empire Pipeline regarding the denial of the Northern Access pipeline project.

The primary groups in the Friday amicus brief included the American Petroleum Institute, the American Gas Association, the Interstate Natural Gas Association of America, and the Natural Gas Supply Association.

The groups argue that New York overstepped its authority by using its permitting powers over water resources to block the pipeline’s construction. They argued that it is the Federal Energy Regulatory Commission that has primary siting authority over interstate pipelines, and that the state’s water permit denial is irrelevant.

Dena Wiggins, president and CEO of the Natural Gas Supply Association, said this is the most recent time the state has used its water certification authority to delay a project that is “far outside of the state’s purview.”

She said the action “undermines the careful balance between federal and state roles in reviewing pipelines” as outlined by Congress in the Natural Gas Act.

“Congress gave FERC primary authority for reviewing pipeline projects, so that one state could not unilaterally veto FERC-approved projects and deprive others states’ natural gas consumers of a useful and valuable source of competitive natural gas transportation,” Wiggins said.

The Department of Environmental Quality has been seen by industry over the last year as supporting Democratic Gov. Andrew Cuomo’s progressive environmental agenda as one of the only states on the East Coast to ban the practice of hydraulic fracturing, or fracking.

Environmental groups see the pipelines as supporting natural gas in nearby Pennsylvania, thereby benefitting the growth of the fossil fuel industry.

The D.C. Circuit Court of Appeals had denied a pipeline company standing last month in a case that the New York environmental agency was dragging its feet in issuing permits to hinder pipeline development in the state. But the D.C. Circuit ruling could favor the industry in the industry’s latest challenge.

“Although the D.C. Circuit held that it did not have jurisdiction to find that the department waived its Section 401 [of the Clean Water Act] rights, the court made clear that the Federal Energy Regulatory Commission does have that power and should exercise it in circumstances like these,” Catherine Stetson, an attorney for the company in the lawsuit, told Law 360 in June.

“The D.C. Circuit’s decision thus makes clear that state agencies like the department cannot ignore federal statutory deadlines with impunity, and clarifies the administrative process for pipelines caught up in bureaucratic red tape,” she said.

new york dec

Why is it a big deal what the Courts of Appeals decide the outcome? Because the only higher court is the U.S. Supreme Court, and the Supremes only take 1-2% of the cases appealed to them each year. Which means these Circuit Courts are typically the last stop for a court case. The NY DEC is on a precipice, dangling precariously, and about to be shoved over the cliff. They are about to lose the right to close down federally-permitted pipeline projects.

Editor’s Note: As we’ve observed previously, things could very well be proceeding according to Governor Corruptocrat’s Machiavellian scheme to appease gentry class fractivist funders of his political campaigns while also getting much needed natural gas through FERC taking back authority from DEC. Such a scheme would even give him additional opportunities to demagogue the issue by blaming FERC and the courts even as he secretly, and not without cause, reminds himself what a clever capo he really is.

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13 thoughts on “New York DEC 401 Certification Authority on the Precipice?

  1. Well what’s the word on the permit and lawsuit that precedes this one? With the Constitution pipe? By the way have you noticed that some reporters are writing about the possibility of a Cuomo run in 2020? Isn’t that interesting considering what has happened in NY with fracking, natural gas and pipelines lately?

  2. Fake News Alert!!! Ugh, once again another ill-informed post.

    So let’s start with this quote:”The justices, in their decision, said that the Federal Energy Regulatory Commission (FERC) has the right and responsibility to step back in and issue the water crossing permits themselves, overruling the NY DEC, if FERC so chooses.”

    First, the judges in Circuit Courts of appeals are not “justices” (that nomenclature is reserved for the Supreme Court), Circuit Court judges are just…judges.

    Second, FERC cannot issue Section 401 water quality certifications (they are certifications, not “permits”). All FERC can do is find that the state waived their right to require the Section 401 certification if they do not issue it within a year.

    There is no “precipice” that NYDEC is “dangling precariously” over. Jim Willis needs a lawyer to help him out, because he clearly has no clue what is going on.

    States will continue to be able to assert their legal and statutory right to “block” whatever project they believe does not comply with their water quality standards. Nothing in that context will change.

    • Troll alert.

      Some pompous hair-splitting fractivist has infected this site as an apologist, probably paid, for cuomo’s massively corrupt stonewalling of interstate commerce and property rights. NYC Democrats are contemptible from top to bottom.

      • Correcting the primary premise of the post (because it is grossly inaccurate) is hairsplitting? Heh, Ok.

        What is contemptible are websites that willfully publish blatantly false and misleading information, and passing it off as truth. Why not just make the corrections? The users of this site, whoever they may be, would be better off for it.

        • You’re the one doing the hairsplitting, of course, Alphege, and that projection is your game is obvious to all. You never answered my question whether Alphege Hamilcar is your real name by the way. Readers might like to know.

  3. I’m sorry for your depraved stance regarding the NY DEC 401 Certification. Your natural gas spills and leaks destroy every living thing, but you think you should have the right to continue. Won’t be much need for natural gas energy when every living being is dead.

    • References please! How many living things have been killed? where? Can you cite credible references? Doubtful.

      And, I’m sure you know this already, and are just spouting the fractivist rhetoric you useful idiots have been programmed with, but natural gas is, as the name says, a GAS! You cannot spill it. And if you are so concerned about natural gas, why don’t you go lobby against agriculture, where bovine flatulence is a major source of methane (natural gas).. Or better yet – drain the swamp! Swamp gas is also methane. Perhaps you should also fight to eliminate volcanos and other non-swamp emitters of gas.

      • There was Time article several years ago. Quite some time so this information has been known to the public for some time. Oh, and I have first-hand knowledge of people that died from working at fracking sites. That was after they developed ulcers and other symptoms that were strange and unusual. They saw several doctors and none could help them. Oh, and let me see, once there has been a leak or spill to a waterway, that water is no longer safe for human beings or any living thing! If you want to call me names, go ahead. I will not stoop to the level you have. Oh yeah, and just because I care about what happens to the earth, doesn’t make me a liberal or fracktivist. It makes me a human being that wants to live in a world that is free of the chemicals you use to extract the gas.

        • “First hand knowledge of people that died from working at fracking sites” huh? I think your credibility died with that one, Deborah.

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