The U.S. 2nd Circuit Court of Appeals has ruled in favor of FERC on the Millennium Pipeline extension, telling both intervenors and the DEC they’re wrong.
The United States Court of Appeals for the Second Circuit ruled yesterday on Andrew Cuomo’s DEC appeal of FERC’s determination that it had taken too long in acting upon a water quality certification and waived its right to decide. It determined FERC was correct, Cuomo was off the reservation and some wacko intervenors didn’t have a clue. Well, that’s not exactly how the court put it, but that’s how I interpreted it, reading between the lines.
Millennium Pipeline knows how to fight. It’s done business in New York for quite some time and, unlike some other companies, knows the political lay of the land, which is marked by deep chasms, quicksand and toll booths. Nothing in New York is ever as it seems and breathing there is political. Only a company skilled in the ways of New York—hardball 100% of time—can survive, let alone prosper. Millennium Pipeline is doing both and just won a big one at the Second Circuit.
What’s interesting about the decision is what quick work the court made of the DEC’s position and especially the intervenors. The DEC argued FERC had incorrectly determined it had waived its authority to review a request from Millennium Pipeline for water quality certification. A group called Protect Orange County, chaired by Pramilla Malick, argued FERC had no jurisdiction because the 7.8 mile Millennium Pipeline extension to feed gas to the new CPV Valley Energy Center didn’t cross state lines. Both arguments were dashed against the Hudson River Palisades.
Here’s how the DEC position was addressed (emphasis added):
Section 401 of the Clean Water Act provides that “[i]f the State . . . fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements . . . shall be waived with respect to such Federal application.”
On forms dated November 18, 2015, Millennium submitted an application for a water quality certification to the Department. The Department received the application on November 23, 2015. On December 7, 2015, the Department notified Millennium that it deemed the application incomplete, pending FERC’s environmental assessment. FERC issued its assessment on May 9, 2016. On June 17, 2016, the Department issued a second notification that it considered Millennium’s application incomplete, requesting further information regarding the Project’s potential environmental impact. In August 2016, Millennium submitted responses conveying additional information to the Department…
In response, the Department acknowledged that Millennium had fully responded to the second notice of incomplete application and stated that it would continue its review. It contended that it had, “at a minimum, until August 30, 2017,” to either approve or deny the application.
…on July 21, 2017, Millennium requested that FERC determine that the Department had waived its authority under the Clean Water Act, and thus permit Millennium to proceed with construction. While that request was pending, on August 30, 2017—nearly two years after Millennium’s initial submission to the Department—the Department denied Millennium’s application. It determined that FERC’s environmental assessment had failed to evaluate the downstream greenhouse gas emissions from the Project. The Department therefore considered the environmental assessment incomplete and rejected the water quality certification request…
On September 15, 2017, following the Department’s decision, FERC found that the Department’s delay constituted a waiver of the Department’s authority under the Clean Water Act (“Waiver Order”). It held that under the plain language of Section 401—which states that the window for review opens upon “receipt of such request”—the relevant date for assessing waiver is the day the agency receives an application, in this case, November 23, 2015…
The Department contends that the review process under Section 401 begins only once it, a state agency, deems an application “complete.” FERC, on the other hand, argues that the one‐year review period commences when the Department receives a request for water quality certification. We agree with FERC.
The plain language of Section 401 outlines a bright‐line rule regarding the beginning of review: the timeline for a state’s action regarding a request for certification “shall not exceed one year” after “receipt of such request.” It does not specify that this time limit applies only for “complete” applications. If the statute required “complete” applications, states could blur this bright‐line rule into a subjective standard, dictating that applications are “complete” only when state agencies decide that they have all the information they need. The state agencies could thus theoretically request supplemental information indefinitely.
The last two sentences say it all. DEC, at the direction of Cuomo, who seemingly controls everything DEC does and says down to the ninth level of that bureaucratic hell, has been playing the same stupid game so many municipalities play; “give us more time or you’ll get a denial.” That game is not so easily played at the state level, though, given that applicants are more likely to have the wherewithal to challenge delays or arbitrary denials and Millennium Pipeline had the guts to challenge King Cuomo II.
The court saw right through DEC’s tricks and just said no. This should call an end to such shenanigans. DEC can still deny an application for being incomplete but if it’s not there’s a remedy with FERC and the courts. Millennium Pipeline, therefore, has done the industry a gigantic favor by testing the law and proving it means something and cannot be turned inside out by the Corruoptocrat-in-Chief Cuomo. If only other pipeline companies had possessed the same insights on New York as Millennium Pipeline and refused to play games with DEC and its master.
Sadly, the court didn’t directly address the bizarre DEC position that “FERC’s environmental assessment had failed to evaluate the downstream greenhouse gas emissions from the Project,” as if greenhouse gas emissions had a single thing to do with water quality certification. It did say, though, “applicants can argue before FERC that their applications are complete under New York regulations” and one presumes those regulations also have to be germane to the matter of water quality certification and not pulled out off the air (literally).
The Second Circuit also made short work of Pramilla Malick’s far-fetched contention FERC was outside its jurisdiction:
The petitioner (the Department) in this instance did not raise the issue of whether FERC has jurisdiction over Millennium’s application regarding the Project. Generally, “intervenors may only argue issues that have been raised by the principal parties; they simply lack standing to expand the scope of the case to matters not addressed by petitioners in their request for review.” Nonetheless, courts may exercise discretion to entertain a new argument raised by an intervenor. We choose to do so here…
The pipeline at issue here will transport gas that is in interstate commerce as part of an integrated system. Millennium’s mainline system is linked to interstate pipelines that run both in and out of the state of New York. Although the pipeline at issue here is located entirely within New York and will deliver gas only to the Valley Energy Center, it will receive out‐of‐state gas from the Millennium mainline. FERC therefore has jurisdiction.
The court, obviously, and deliberately, took the opportunity to use Malick’s argument for articulating law that should have been clear from the beginning. It was a quick slap down to someone again playing games. Interestingly, Malick was represented by Carolyn Elefant who is a go-to source for William Penn Foundation shill StateImpactPA and its other shill the Delaware Povertykeeper. Ironically, Elefant has complained FERC takes too long to decide matters but is happy to defend DEC games.
Malick also got help from Mike Bloomberg’s bought and paid for New York University School of Law (which operates as an advocate with tax-exemption). The source of money for all this? Well, a fellow intervenor with Malick is the Brunt Living Trust. Need we say more?
Thank goodness the Second Circuit saw through all this nonsense.