Constitution Pipeline Learns: Never Play Ball With Cuomo’s DEC

delaware riverkeeper - Jim Willis reports

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


Cuomo’s DEC played the delay game with the permitting process of the Constitution Pipeline and won; FERC says its hands are tied and will not overrule.

This is a bitter and sad day. The five Commissioners of the Federal Energy Regulatory Commission (FERC) released a decision yesterday (copy below) that FERC will not overrule an illegal decision by the corrupt Cuomo Dept. of Environmental Conservation (DEC) to block construction of the Constitution Pipeline (which FERC approved in 2014). Is this truly “lights out” for the Constitution? It would seem so.

Cuomo’s DEC took more than two years to evaluate and eventually reject the Constitution Pipeline–a $683 million, 124-mile pipeline from Susquehanna County, PA to Schoharie County, NY to move Marcellus gas into NY and New England. Constitution went to federal court to overturn that decision, but ultimately failed last August. But then a ray of hope appeared in the galaxy. FERC overruled NY DEC in another pipeline case, so Constitution filed a request with FERC to overrule NY DEC in their case. FERC wanted to overrule DEC again.

Constitution pipeline

You can read between the lines and detect it in yesterday’s decision. But ultimately FERC could not overrule the DEC because the DEC rejected the permit with four days left ticking on a one-year clock (we explain it all below).

So this question: Are all avenues exhausted for Constitution? Is the ray of hope in the galaxy now extinguished? Will evil (i.e., the Cuomo-corrupted DEC) rule the galaxy? According to Williams, Constitution’s builder, the answer is an emphatic, “NO!” Williams will first file with FERC, asking them to rehear their decision (which we don’t think is likely). If FERC denies the rehearing request, Williams is prepared to appeal FERC’s decision to federal court.

Let’s begin with how mainstream (biased) news outlets are reporting yesterday’s FERC decision:

The Federal Energy Regulatory Commission has refused to grant a ruling that would have paved the way for construction of the Constitution Pipeline — a proposed 124-mile natural gas line that would cross Broome, Chenango, Delaware and Schoharie counties.

Constitution Pipeline Company LLC filed a petition with FERC on Oct. 11, asking the commission to find that the state Department of Environmental Conservation waived its authority to issue a water quality certification for the pipeline project by failing to act within a statutory time limit.

FERC issued an order on Thursday, denying the petition.

The $1 billion natural gas transmission project — designed to transport shale gas harvested in northeast Pennsylvania to a compressor station in Schoharie County — has been delayed since April 2016. That is when the planners of the pipeline were told by the DEC that its water permits were denied by the state agency.

Constitution sued to overturn the decision, but the U.S. Court of Appeals for the Second Circuit upheld the DEC, stating the plaintiffs had “no basis” to reverse the decision.

According to a FERC document, Constitution argued that DEC had exceeded the one year allowed for acting on applications because the cumulative time period of three different applications — two withdrawn before their deadlines — amounted to more than a year.

FERC ruled that new deadlines started with each application, and that DEC’s action with four days left before the deadline for the most recent application was valid.

constitution pipeline

So what really happened? In reading through the decision, it appears FERC would have liked to overrule NY DEC–but the Constitution fell into the DEC’s trap of restarting the clock a second time. States have one year to rule on requests for federal water crossing permits.

When NY’s time was up, the DEC very craftily, batting their eyes, asked the Constitution to refile the request, to give DEC more time. Ya know, just to cross all those T’s and dot all those I’s. DEC put on its best perfume and lipstick (hiking their skirt real high) lulling the Constitution into a fatal mistake–the mistake of thinking NY was working in good faith and would say “yes” to the project. Constitution fell for it and refiled a second time.

When they did so, the clock started ticking all over again, for another full one year period. When the DEC finally pounced, revealing their treachery, they issued a denial four days before the one year expiration of the second “application” by Constitution. Because DEC technically, according to the letter of the law, was within the one-year time limit, FERC said their hands are tied. They can’t overrule the DEC.

We reiterate that once an application is withdrawn, no matter how formulaic or perfunctory the process of withdrawal and resubmission is, the refiling of an application restarts the one-year waiver period under section 401,” FERC said in denying Constitution’s petition. “…The statute speaks solely to a state’s action or inaction, not to the repeated withdrawal and resubmission of applications. By withdrawing its applications before a year had passed, and by presenting New York DEC with new applications, Constitution gave New York DEC new deadlines.”

Constitution had also urged FERC in its petition to look beyond the one-year test, arguing that the entire process at DEC amounted to “coercive state action” and “gaming” to delay the project. It requested that the Commission determine a reasonable period of time to be less than one year based on DEC’s actions and statements.

“We decline to do so because entertaining, on a case-by-case basis, challenges to a certifying agency’s processing of a water quality certification would create uncertainty for both state certifying agencies and applicants, and is contrary to Commission precedent in both hydroelectric and natural gas proceedings,” FERC said.

So the federal court previously rejected Constitution’s request to overrule NY DEC, and now FERC has rejected Constitution’s request to overrule NY DEC. It certainly seems to us this is it. The end.

But not so fast. MDN reached out to Christopher Stockton, spokesman for Williams, asking for a reaction to yesterday’s decision. Stockton sent us this comment via email:

While the decision by the FERC to deny our petition is disappointing, we firmly believe that the Clean Water Act does more than impose a strict “one-year test” on state agencies and, accordingly, we believe the order erred by failing to find that Section 401 was waived due to New York failing to act within a “reasonable period of time” on Constitution’s Clean Water Act application. We are planning to seek rehearing and, if necessary, appeal of this decision in order to continue to develop this much-needed infrastructure project designed to bring natural gas to a region of the country that has recently experienced demand resulting in the highest natural gas prices in the world. Constitution remains committed to constructing and placing into operation this critical piece of energy infrastructure.”

So there you have it. Williams’ angle is that it’s not just a strict one-year time limit, but a test of reasonableness. If the later, NY DEC certainly failed big-time. Let’s hope Williams is able to prevail, in the end. We’re clutching to that ray of hope in the galaxy.

Here is the full copy of yesterday’s FERC decision.

Constitution Pipeline

Click to read full decision.

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13 thoughts on “Constitution Pipeline Learns: Never Play Ball With Cuomo’s DEC

  1. That’s what Constitution gets for mowing down hundreds of trees and a maple grove on land that landowners said, NO, to and then they eminent domained them and took them to court and used US Marshalls to accompany and enforce the cutting in Susquehanna County, Pa.

    This is their Karma ….justice….

    • I suppose then that the 20 acres of trees cut down for a solar installation in Otsego County don’t count because they gleefully threw themselves into the chainsaws and chippers. Your idea of karma needs work.

      • Don’t forget, depending on the voltage produced by so called “renewable power” producers, the establishment of their associated electrical transmission lines (Even more trees being cut) are exempt from SEQRA due to Article X of the Public Service Law. Looks like “green technology” isn’t so green after all. Oh yes, those new rights of way have to be properly maintained, so expect even more applications of herbicides, erosion (siltation) and other pollutants of concern getting into the water supply. How’s that for karma?

        • Nice try, y’all, hijacking this thread away from its original subject, which had nothing to do with forms of energy but rather was about the JACK-BOOTED-GOVERNMENT-THUG-enforced, LAND-THEFT methodologies that the failed “Constitution” pipeline project committed suicide by using.

  2. So very sad for the people of New England who are struggling to pay their heating bills. The stranglehold on pipelines development by NY state is a direct attack on the people of New England and in turn not only do they suffer in the pocketbook but causes a ‘health crisis’ for those who suffer from lack of heat in this bitter weather.

  3. The real story is that not just the denial go our New England States, but the denial of fossil fuels by people like Vera and Bill who can’t get off them because the alternatives by their own admissions are just not there!

    That and this tidbit of truth. There lies and nimby activisim has brought the wrath of truth upon them. Just this past week have learned of a tanker barge porting in Boston Harbor full of LNG from Russia’s Gasprom? Russian fuel sold to America, could this be the reason Russia supplied funding to the anti gas movement in NY, North America? YES!!! And it paid off.

    Russian gas is not the only result of anti gas efforts! VIRTUAL GAS LINES WILL BLOSSOM…tens of thousands of trucks will take to Pa, NY, Ohio. And all over New England to deliver cheap fossil fuels mainly to factories and Hospitals in pipeline starved parts of the Northern United States. Truck traffic, one of the anti gas movements main talking points will become a huge reality thanks to the lies and propaganda people like Vera and Bill provocated over the past decade..

    The truth is all anyone deserves, but the lies of those who are paid in the anti gas movement to deceive the public and recruuit fear from the innocent is a powefull too. That isl until winters like this create the silence on their argument, as they huddle around their fossil fueled fired furnaces and look for ways to blame the cold on global warming…

    • Wouldn’t it be ironic that the “real collusion” is between our misguided “friends” whose oppose the transmission system of even non fracked gas (including gas extracted from landfills, and agricultural/municipal digesters which is properly processed for distribution ) and the “Russians”??

  4. It should not be long, I predict, before LNG will be loaded at Chesapeake Bay at the new liquefaction plant there, and unloaded at Boston. Another ‘virtual pipeline’, but again an expensive one for the end users!

  5. If I were Williams Cos, I would take out a full page ad addressed to any one who heats with natural gas. Stick to the facts and let them know the game Cuomo and DEC played. Give them those phone numbers so when their heating bills go up they know who to call.

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