Court Kicks Constitution Pipeline and Case Down Road

Constitution Pipeline - Tom Shepstone ReportsTom Shepstone
Shepstone Management Company, Inc.


The Second Circuit Court of Appeals has ruled on the Constitution Pipeline, kicking Williams in the gut on part of it and kicking part of it down the road.

A three-judge panel of the Second Circuit Court of Appeals in New York City composed of Carter, G.W. Bush and Obama appointees has issued a very disappointing decision in the Constitution Pipeline case. It ruled against the Constitution Pipeline on the matter of whether the New York DEC acted arbitrarily in denying water quality certification while saying it had no authority to decide the critical question; whether DEC took too long. A read of the opinion (available here with my highlighting of important points) is an exercise in appreciating everything that’s wrong with New York, the courts and the pipeline industry.

Here’s the quick summary of what happened (emphasis added):

Respondents denied the application on the ground that petitioner had not complied with requests for relevant information. Petitioner contends (1) that respondents exceeded the statutory time limitations for the State’s review of the application and that they must therefore be ordered to notify the United States Army Corps of Engineers (“USACE”) that the State waives its right to issue or deny § 401 certification, thereby allowing USACE to issue a permit to petitioner under § 404 of the Clean Water Act, see 33 U.S.C. § 1344(a); and (2) alternatively, that respondents’ decision should be vacated on the ground that the denial of the application was arbitrary, capricious, and ultra vires, and that respondents should be ordered to grant the requested § 401 certification. To the extent that petitioner challenges the timeliness of respondents’ decision, we conclude that we lack jurisdiction over that challenge. As to the merits, we conclude that respondents’ actions were within their statutory authority and that the decision was not arbitrary or capricious.

DEC, in other words, had authority to deny the permit, but whether it took too long to do so is still up for grabs. Things are still in limbo; a very unsatisfying result for those of us trying so hard to get this project approved since 2012 in the face of New York State political corruption. Despite this, the Constitution Pipeline owns much of the blame for naively cooperating in good faith with DEC and allowing this situation to develop. Here’s the sordid background in two separate but related paragraphs from pages 10 and 19 of the opinion:

In December 2014, NYSDEC issued a notice that Constitution’s application was complete; but on December 31, it asked Constitution for more information about stream crossings. In January-March 2015, Constitution submitted more information to NYSDEC, and on April 27, 2015, at NYSDEC’s request, Constitution withdrew and resubmitted its § 401 application. (Constitution had also withdrawn and resubmitted its § 401 application at NYSDEC’s request in May 2014.)

Constitution argues that NYSDEC did not issue its Decision until 32 months after Constitution submitted its initial application, 16 months after NYSDEC issued notice that that initial application was complete, 15 months after the deadline imposed by FERC, nearly a year (“359 days”) after Constitution’s 2015 withdrawal-and-resubmission of its application–and eight months after Constitution claims it was advised by NYSDEC that NYSDEC “had everything it needed to issue a Section 401 Certification.”

Several questions arise. First, what possible right did DEC have to keep asking for information subsequent to the determination the application was complete in December, 2014? Why didn’t the court address this? How is it possible DEC was entitled to keep demanding more information when it already had a complete application? And, didn’t the Constitution Pipeline demonstrate its good faith by supplying the requested additional information that went beyond the demands of a full application? The answer is obvious but the court avoided it assiduously, simply dispensing with the critical timing issue by simply saying “not our job.”

Constitution Pipeline

Federal Courthouse in NYC – Home of Second Circuit Court of Appeals

The Constitution Pipeline created the circumstances that allowed for this by voluntarily going along with a DEC withdrawal and resubmission request. The second major question, therefore, is simply this; what was the company possibly thinking? Governor Corruptocrat had already stabbed the industry in the back with shameless demagoguery and demonstrated he was captive to the NRDC gang. Their man, Joe Martens, was running DEC for him and it had quite obviously been transformed into a totally political entity at the whim of the Governor’s Office. Playing along was a strategy destined for failure at the hands of accomplished corruptocrats.

The reason the company played along, of course, is the same one to which most applicants for governmental approvals ultimately succumb. They want approvals. The threat of possible denials without cooperation is enough reason to play along with what everyone knows is a delay game. Except, that in this case DEC had already granted a full application decision and Constitution Pipeline threw it away in good faith negotiations with very bad people. The proper approach, the only approach in New York, was to play hardball as Millennium has done; challenging DEC on timing the moment the one-year deadline for action had passed, not extending the deadline free of charge.

Now, because of that incredibly naive decision, Constitution Pipeline has been handed a decision affirming DEC has the right to deny water quality certification but without addressing the critical timing issue. Yet, the timing is the issue. Everyone knows exactly what’s going on here; DEC has now played similar games with two other pipelines. It is not DEC itself doing the deciding, though. Rather, that is being done by Andrew Cuomo on behalf of the NRDC gang.

Whether Cuomo wants FERC to make the decision on that issue or is sincere in his catering to the gang is something we’ll never know, but it appears the next move is one of three things; (1) an appeal of the decision, (2) a new filing with the D.C. Circuit or (3) a request to FERC to take matters into its own hands by deciding DEC took too long (which would probably be challenged at the D.C. Circuit). Bear in mind in this regard what the D.C. Circuit has already said in the Millennium case where that company wisely chose to play hardball from the outset (emphasis added):

To prevent state agencies from indefinitely delaying issuance of a federal permit, Congress gave States only one year to act on a “request for certification” under the Clean Water Act. Alcoa Power Generating Inc. v. FERC, 643 F.3d 963, 972 (D.C. Cir. 2011) (quoting 33 U.S.C. § 1341(a)(1)). That deadline is established by section 401 of the Act, which requires a State to grant or deny the certificate “within a reasonable period of time (which shall not exceed one year) after receipt of [a] request.” Id. If the State fails to act within that period, the Act’s “certification requirements” are deemed “waived,” such that the pipeline no longer needs a water quality certificate to begin construction.

That last line is what it’s all about and the decision released yesterday by the Second Circuit kicked it down the road to the same court that uttered it. Let’s hope they remember.

Print Friendly, PDF & Email

21 thoughts on “Court Kicks Constitution Pipeline and Case Down Road

  1. Still not seeing how the failed to act in the allotted time works since the application was resubmitted to the ny DEC. As to requests for more information the same thing does happen with ferc and answers and information is then submitted.

    One wonders how it might be that the press by and largr, who purportedly are the govt watchdogs, have not looked at what has occurred with the NY DEC both under martens with the fracking decision and then seggio with both the Constitution pipe permit and the other permit recently denied?

    In the first place the NY DEC made a decision on fracking which wasn’t backed up by paperwork or anything explanation for 6 months or so and in the second place how does one explain both the fact that fracking is commonplace in the united States plus the state is among the top consumers of natural gas in the country with this decision made by the NY DEC? The same isn’t so for pipelines? How many miles of pipe were permitted in various states in the time span it took the NY DEC to reject the constitution pipe permit?

    How many lawyers and activist groups that are part of the antifracking pipeline resistance movement were actually in the constitution pipe docket? Plenty right?

    I’m not sure how or why anyone would want to do business in NY State if dealing with the NY DEC would be part of the process of doing that at this point. And as a citizen I have little confidence in how that agency operates now.

    • More and more for sale signs are being put up in areas of CNY you wouldn’t think. Yes, you will get your usual cycle of retirees moving to states with less tax overhead, but a number of middle aged professionals still with offspring are following their lead. Eventually the backbone of NY ‘s revenue will be broken and irreparable. 3 years, 4 months, 15 days, but who’s counting? :₩

      • You know of course that the ” WORKING” families party was part of this ban fracking for natural gas movement in NY? Downstate in 2014 or maybe 2015 we had politicians like Donavan Richards in the Rockaways and the NYC council so far under the thumb of this antifracking movement that they were spouting the antifracking movements consoriacy theory talking points on a proposed lng import project plus saying natural gas was the worst fossil fuel???? How much more upside down is this crap going to get while the press just ignores it?

        All kinds of agencies from the NY DEC to the army corps of engineers and all levels of govt from small municipality to the state to the feds have had interactions with the anifracking pipeline resistance movement, not to mention all of us who have been involved in some other way with the issue of natural gas devlopment say in NY or at a pipeline hearing. How is it that the actual truth about what is going on with the antifracking pipeline movement ,which is hysteria and mass misinformation and more, has not been communicated clearly to the American public?


    There is something interesting. An nrdc “expert” writing about consitution pipe. Oddly she is using some pictures taken by Erik McGregor. Hey wasn’t Erik in that occupy the pipeline video about radon and explosions with Spectra nynj pipe? What about Rockaway pipe? What was he part of with the port Ambrose project too? How about Spectra aim? What was his involvement there or let’s say resist aims involvement? I wonder if Erik the photojournalist has any pictures of James Crowley getting arrested with pramilla malick as well?

    Small world eh? So fascinating.

  3. “nearly a year (“359 days”) after Constitution’s 2015 withdrawal-and-resubmission of its application…”

    In other words, the DEC ‘s denial came *within* the required 365-day time limit.

    So you admit the truth: Constitution has no case.

    • And NY and the rest of the NE will eventually have to find other sources of energy. Good luck when Indian Point finally shuts down. Rolling blackouts like in Germany will be the norm and the lack of available NG will affect mass transit via CNG busses which will be rationed. Therefore the poor and others who depend on Mass transit will be further marginalized. Look at the big picture, you might learn something.

      • Before spouting dystopian fantasies about the coming collapse of the Northeast energy infrastructure, maybe you might learn something about how business and politics and the legal system works.

        Williams could have gotten a DEC permit if they’d agree to use HDD on all those stream crossings. But HDD is way more expensive than trenching. And it would set a precedent for other pipeline projects that would end up costing them and the industry mega-bucks. So Williams decided to wear the DEC down, and stonewalled on the HDD, and gave the usual bribes (aka “grants”) to local communities to gain their support, and just assumed DEC would eventually cave to the pressure, as has always happened before. But this time the strategy backfired. DEC knew they were going to be sued no matter what, and in the end chose to defend themselves against the pipeline company rather than upstate residents who vote (do the math — for every landowner hoping for a gas lease, there are 10+ people who will bear the costs without the benefit).

        Williams was hoping the court would order the DEC to reach some kind of settlement. But they know the case is stacked against them and in another year they will have to stop lying to their investors and decide whether to give in to the DEC (i.e. re-apply) or take a $400 million write-off on the Constitution. It’s just a business decision.

        They’ll probably take the write-off, as $400 mil won’t make that much of a dent in their bottom line or stock price. And just do an end-around NYS with Penn East, Atlantic Sunrise, etc. No big deal.

        So much for your big picture. It’s really just about corporate arrogance, and greed. It’s ALWAYS about $$$$.

        • You completely ignore the fact DEC deemed the application complete and then requested more information in an attempt to wear down Williams and create the basis for Cuomo to play politics and neither PennEast nor the Atlantic Sunrise will supply the gas New England needs. You’re another ideologue trying to rationalize you bizarre conviction, it seems to me.

          • I think anyone looking at this objectively would and should acknowledge that the NY DEC did not act appropriately. Remember NY DEC’s own website said they did not expect delay with the resubmitting of the application?

            Where was the press during this delay? Well some people were in fact covering those protesting the pipeline quite blindly. And they still are, aren’t they?

            One could not see what the reason for the delay was prior to that permit being rejected. And never have I seen any explanation other than politics for why that permit was denied on Earth day in 2016, during the election season , while fracking became an issue in the primary and after an absurd editorial by Al gores daughter.

            That no reporters are looking into what is happening with this pipeline issue in NY State and he anifracking movement is absurd. And I can state flat out there are reporters refusing to do this.

          • And you’re telling me Williams didn’t try to wear the DEC down too? Yes, I have my version (unpaid) & you have yours (paid). I understand you’re just doing your job. No disrespect intended.

        • Bill, HDD is not intended for “stream” crossings…it’s intended for “river” crossings. Some of these “crossing” possibly didn’t even have water running in them. Would you use dynamite to get rid of an ant bed?

          People who are opposed to bringing clean burning fuel to America via pipelines are intelligent folks who understand the rules of the game and know how to manipulate the system and they have Cuomo’s ear.

        • The “dystopian fantasies” are dystopian realities right now in South Australia.
          In what is being derisively termed the World’s Renewable Energy Crash Test Dummy, SA is just a few weeks away from entering their summer season with insufficient electricity supply due to their extensive embrace of wind and solar.
          The 9 GE TM 2500 turbine generators being frantically shipped from Europe will burn through 20,000 gallons of diesel per hour in desperate attempts to avoid blackouts.

          New England is entering this same situation as looming cold snaps in the coming winters will show inadequate gas for both heat and light.

          Regarding the fierce resistance the fractivists have introduced to stifling hydrocarbon development … A left handed “Thank You” is in order from hydrocarbon boosters.
          The emotionally charged, fact-free ‘arguements’ are increasingly being used against sun and wind powered infrastructure build out.

          Missouri just shot down a huge transmission line for wind power that will be the template for all such future project terminations.
          The imagery of dead whales (aka Dora’s Mommy) lying on beaches throughout Europe and the Atlantic provide powerful ammunition to Zephyr development foes.

          Thank you, Vera, Maya, Ruffalo, McKibben, et al.
          You have deftly demonstrated, in true Alinsky fashion, that using one’s foe’s tactics against them is an extremely powerful strategy.

  4. If the DEC asked for more info couldn’t they have just as easily denied their application as incomplete ?
    It seems kinda nice of NY to let them add to the application . Just a little odd? Kid gloves !
    And Remember, friends don’t let friends consume imported energy. Support U.S. jobs and burn domestic.

  5. For all the quotes in this post, it seems as one of the most important with regard to the timing issue was curiously omitted. The Court in no uncertain terms stated:

    “We note first that there is nothing in the administrative record to show that NYSDEC received the information it had consistently and explicitly requested over the course of several years much less anything to support Constitution’s claim that NYSDEC said “it had” all of the information it required “to issue” the requested certification.”

    NYDEC is certainly going to seize upon that language in any further appeal.

    Constitution and its attorneys have now lost before the Northern District Court of New York (before a fairly conservative judge), and now lost again before the Second Circuit. The future looks dim for Constitution.

    Additionally, how did the high-priced corporate lawyers miss the simple statutory clause in the Natural Gas Act that requires appeals of failures to act in the DC Circuit? What a waste of time and money fighting that issue out before the wrong court. Whoops…

    • You ignore the finding of a full application by DEC, of course, which preceded the requests for further information. As for the filing in the Second Circuit and Constitution’s failure to play hardball three years ago when it should have, I can’t explain that.

      • I didn’t “ignore” anything, I am merely pointing out that you missed a very important point in your synopsis. If you dispute that the Court came to that conclusion, or that this conclusion was not important…by all means, explain.

        In response to your non-sequitur, apparently you are unfamiliar with how public comment provisions work in the state of New York (you should familiarize yourself). The notice of a complete application simply triggers public comment. See ECL § 70-0109(2). NYDEC’s determination to treat an application as complete for public comment purposes does not, in any way, signal that it has received all of the information necessary to render a decision. See 6 N.Y.C.R.R. §§ 621.6(g), 621.14(b). The 15,000 comments on the permits raised concerns not initially addressed or considered by NYDEC. In fact, if anything, this is a great example of good responsive government decision-making.

  6. One hell of a lot of beating around the bush above…

    This is very simple: cuomo and the rabid left run NY like it’s their own sovereign nation. No drilling no pipelines, period. Reality and criminal collusion be damned.

    From the cuomo Ministry of Propaganda: the “Southern Tier (is) Soaring”, and Binghamton is now a “Clean Energy Community”. What PR garbage… from energy to sanctuary cities to allowing only approved speech, the left insures the demise of this nation.

Leave a Reply

Your email address will not be published. Required fields are marked *