Natural Gas NOW
The Constitution Pipeline has a go-ahead by FERC as it drives a stake into the heart of corrupt Cuomo’s DEC. The project not only lives but will be built!
We have long argued here that Williams was lulled into a trap on its Constitution Pipeline project by corrupt Governor Andrew Cuomo’s DEC. It played ball with the DEC by repeatedly resubmitting its water quality certification applications at the agency request, which was a naked move by Cuomo to allow time for special interests to gin up opposition so he could then instruct DEC to deny it.
Cuomo never cared whether it got built or not; he just wanted the green street cred for opposing it. He knew the courts would ultimately decide, anyway. By participating in the resubmission scam Williams only delayed the day of reckoning it desired. But, thank goodness, they’ve stuck with the project through it all and learned how to fight. They’ve been rewarded with a beautiful FERC go-ahead issued on Wednesday that sets the stage for the final court appeal which, based on earlier decisions, should be a slam-dunk for the Constitution Pipeline!
Here is the decision and the money paragraphs are offered below (emphasis added and citations deleted):
As noted above, under section 401 of the Clean Water Act, if a state certifying agency “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 of [section 401] shall be waived with respect to such Federal application.”
Hoopa Valley involved a long-pending relicensing proceeding. Negotiations among the state certifying agencies, the licensee, and other stakeholders yielded a settlement agreement that required, among other conditions, that the licensee withdraw and resubmit its section 401 applications to Oregon and California each year to avoid waiver during an interim period when the licensee was to satisfy agreed-upon environmental measures and funding obligations, to lead ultimately to the removal of several dams. The “coordinated withdrawal-and-resubmission scheme” persisted for more than a decade.
In New York DEC v. FERC, the U.S. Court of Appeals for the Second Circuit explained that section 401’s “plain language . . . 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.’” The Hoopa Valley court held that the prescribed time limit “applies to a specific request” and “cannot be reasonably interpreted to mean that the period of review for one request affects that of any other request.”
…New York DEC’s and Constitution’s actions in connection with a withdrawal and resubmission scheme for the purpose of avoiding section 401’s one-year time limit for state action are, as relevant here, analogous to the agreement between the parties in Hoopa Valley. Nothing in Hoopa Valley suggests that the specific form of the agreement—whether the understanding was formal or informal, written or oral, communicated on paper or electronically—was material to the court’s decision. As noted, Hoopa Valley held that the parties’ arrangement “serve[d] to circumvent [FERC’s] congressionally granted authority over the licensing, conditioning, and developing of a hydropower project,” which would have permitted “the states [to] usurp FERC’s control over whether and when a federal license will issue.” The same concern applies here.
Accordingly, we conclude that New York DEC failed or refused to act on Constitution’s request for a water quality certification within the one-year period running from Constitution’s first resubmission on May 9, 2014, to a deadline of May 9, 2015—i.e., that the April 27, 2015 withdrawal and resubmission did not restart the one year clock for waiver.
Cuomo’s DEC used up its time playing politics and has been called on it. A waiver has been determined to have been granted via the DEC’s abuse of the process, which has now been corrected. What a great day!