Is FERC Opening the Door to the Constitution Pipeline?

cost of renewables - Tom ShepstoneTom Shepstone
Natural Gas NOW


Following the DC Circuit Court of Appeals in a hydroelectric case from out West, FERC has asked for a remand of the Constitution Pipeline case to it!

A few weeks ago I reported here the big news about a case called Hoopa Valley Tribe v. FERC which has huge implications for the Constitution Pipeline. It involves a very similar case of a state effectively forcing an applicant for water quality certification to withdraw and resubmit applications as a delaying tactic. The DC circuit stated that “if allowed, the withdrawal-and-resubmission scheme could be used to indefinitely delay federal licensing proceedings and undermine FERC’s jurisdiction to regulate such matters.”

That was a strong signal that everyone’s had it with the stupid game Andrew Cuomo has been playing. It now looks as if FERC has received the signal. It has asked for a remand to itself in the Constitution Pipeline case. That can only mean one thing and it’s bad news for the Catskill Mountainkeeper and gentry class friends.

Constitution Pipeline

DC Circuit Court of Appeals – Courthouse

Here’s the good news via the filing FERC just made with the DC Court of Appeals (emphasis added and citations deleted):

Pursuant to Rule 27 of the Federal Rules of Appellate Procedure and Circuit Rule 27, Respondent Federal Energy Regulatory Commission (“Commission” or “FERC”) respectfully requests that the Court grant voluntary remand of this appeal, which involves a challenge to Commission determinations in Constitution Pipeline Company, LLC…

As explained below, the Commission believes it is appropriate for the agency to reconsider the orders on review in this case in light of a recent decision by this Court concerning similar issues. Counsel for the Petitioner and for all Intervenors have authorized Commission counsel to state that this motion is unopposed.

On October 22, 2018, the Commission requested that the Court hold this  case in abeyance pending the outcome of the appeal in Hoopa Valley Tribe v. FERC… based on common questions of law regarding the Commission’s interpretation of the Clean Water Act, 33 U.S.C. § 1341(a)(1). As in this case, the petition in Hoopa Valley challenged the Commission’s determination that, if an applicant withdraws its application for state  certification within a year and subsequently refiles it, the one-year period for the state to act on the application begins anew and the state has not waived its authority by failing to act within the year. The Court granted the motion for abeyance on November 5, 2018, directing the parties to file motions to govern future proceedings within 30 days after the Court’s disposition in Hoopa Valley.

On January 25, 2019, the Court issued its decision in that case, vacating and remanding the Commission’s orders. The Court held that withdrawal and resubmission of water quality certification requests “does not trigger new statutory periods of review.”

The court declined to decide whether withdrawal of a section 401 request and submission of “a wholly new one” can restart the one-year period, or (if so) to determine “how different a request must be” to restart the clock. But the court found, on the facts of that case where the applicant and the states had explicitly agreed to delay water quality certification that the states had “defie[d ]” section 401’s requirement of state action within  a reasonable period of time.

Accordingly, the Commission respectfully requests that the Court grant a voluntary remand of this case to permit additional consideration of orders on review. A voluntary remand of the case and record by the Court will avoid the unnecessary expenditure of resources by the Court and parties on review of orders that do not address the Court’s Hoopa Valley decision. See 16 U.S.C. § 825l(b) (“Upon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part.”).

To help inform the Commission’s decision on remand, the Commission will permit the parties to file, within 30 days of the Court’s order on this motion, supplemental pleadings and record materials on the significance of the Hoopa Valley decision. The Commission will also permit the parties to file responsive pleadings within 20 days after that initial deadline.

There you have it. We’re nowhere near the end of the road. The intervenors probably agreed not to oppose the remand request filing because they know they’ll get another shot at opposing it with filings of their own at FERC. Moreover, any FERC decision after remand will be re-appealed to the court anyway.

The fight isn’t over but, as Cabot adroitly noted at about 36:30 in their last earnings call, things have shifted a lot in the direction of the Constitution Pipeline. FERC wanted to overturn New York before. Constitution Pipeline’s naive cooperation with the New York DEC’s obstruction along the way made that difficult.  Now, the door has opened for FERC to do what it wanted to do, and should have done, all along! Hallelujah!

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