FERC has given Governor Andrew “Corruptocrat” and his equally corrupt DEC a message; their days of riding roughshod over Federal law on pipelines are over.
Jim Willis, who somehow manages to pick up on everything over at Marcellus Drilling News (MDN) posted a story yesterday revealing something extraordinarily important for the pipeline and natural gas industry. The Federal Energy Regulatory Commission (FERC) directly took on the political corruption that is New York State government. It also sent a signal to other states who have followed suit in abusing the Section 401 Water Quality Certification process for pipelines under the Clean Water Act. FERC is taking a strong stand to defend the integrity of Section 401.
It all has to do with the seven mile Millennium Pipeline extension to serve a nearly complete power plant in Orange County, New York. It was only a week ago Jim Willis reported Millennium, having gotten FERC to overrule DEC’s denial of its water quality certification by declaring the latter had waived its rights to decide, was now asking FERC to allow it proceed with construction.
FERC has now approved that request, effectively telling Governor Corruptocrat, his corrupt DEC and every other state abusing Section 401 that those days are over. It’s a new day and FERC is not going to play along with these attempts to turn water quality certification into a state pipeline veto process. The law will be followed.
Here is the full letter and the relevant parts are as follows (emphasis added):
In considering this notice to proceed, we reviewed Millennium’s December 21, 2016 Implementation Plan and confirmed compliance with the necessary pre-construction conditions of the Federal Energy Regulatory Commission’s November 9, 2016 Order Denying Motion to Dismiss and Issuing Certificate (Order).
We have also confirmed receipt of all federal authorizations necessary for the approved activities herein, or waiver thereof, pursuant to Environmental Condition 9 of the Order. With regard to Clean Water Act permits, on May 11, 2017, the U.S. Army Corps of Engineers (Corps) issued a Nationwide 12 permit for the project under Section 404 of the Clean Water Act. Subsequently, on September 15, 2017, the Commission issued a Declaratory Order Finding Waiver Under Section 401 of the Clean Water Act. In an October 16, 2017 letter to Millennium, the Corps acknowledged the Commission’s determination that the Section 401 permit was waived and took no action to revoke or modify its previously issued Section 404 permit.
Millennium has not received concurrence from the New York State Department of Environmental Conservation (NYSDEC) regarding surveys for bog turtles, as was required by Environmental Condition 14(a). You explain that Millennium provided survey reports to NYSDEC on December 21, 2016, and that the state has yet to respond. However, by letter dated February 2, 2017, the U.S. Fish and Wildlife Service stated that it agreed that the project may affect, but is not likely to adversely affect, the bog turtle, and that no further coordination or consultation under the ESA is currently required. Accordingly, we conclude that Millennium has made a good faith effort to abide by Condition 14(a) and that no further consultation under that condition is necessary.
In compliance with Environmental Condition 5 of the Order, I also approve the project modifications shown in the Implementation Plan, including incorporation of conventional bores, horizontal directional drills, additional workspace, and access road modifications. We concur that approval of the conventional bores and horizontal directional drill modifications offer a greater level of protection for waterbodies and wetlands crossed by the project. Further, staff have confirmed there would be no effect on cultural resources or threatened or endangered species from the use of these areas and Millennium has documented landowner approval for these modifications.
Take notice of the specifics. FERC also called out DEC’s failure to respond to Millennium’s submission, 10 months ago, of bog turtle survey data. These sorts of delays—failures to act—are the form that political corruption takes in an agency such as DEC and FERC recognized it. This is precisely why there is a one-year time limit on water quality certifications and why “good faith” matters.
Needless to say there was no good faith on the DEC side (at the top at least). Basil Seggos, the little Napoleon running the agency on behalf of the NRDC gang and friends, following in the footsteps of Joe Martens, made a mockery of it, but Millennium’s good faith was acknowledged by FERC and it wasn’t accidental.
Notice, too, the Army Corps of Engineers didn’t play along with DEC. It acknowledged the waiver and ” took no action to revoke or modify its previously issued Section 404 permit.”
DEC, of course, is crying foul but is it real? I continue to maintain Governor Corruptocrat is simply trying to have it both ways. He wants the gas but credit for opposing it as well. He can not possibly be against supplying the new power plant—the one that will pick up the slack from his promised closure of the Indian Point nuclear station—with natural gas. That would be madness and while Cuomo is far from smart, he’s very, very clever in the way Boss Tweed was also clever.
That he wants it both ways is evidenced by the fact he’s appealing not to the DC Circuit Court of Appeals where all FERC appeals properly go but to the 2nd Circuit Court of Appeals in New York.
It’s easy to imagine he simply wants a friendly court in New York but his lawyers are smart and they know the Constitution Pipeline’s appeal to the 2nd Circuit failed for lack of jurisdiction. That’s a pretty darned good sign they’ll do the same in this Millennium case, leaving Corruptocrat to say he’d every thing he could to stop the pipeline but lost as he turns away with that wry evil grin of his knowing he just got the gas he wanted as a guarantee of his ability to shut down Indian Point.
Do I sound paranoid or conspiratorial? Perhaps, but I know this much; Andrew Cuomo is a political hack at heart, a chameleon and a great admirer of Machiavelli. What I’m suggesting fits persona like a glove and this who ignore how New York State works and how Cuomo thinks do so at their peril. Ask the folks at Constitution Pipeline.
Ironically, though, this new FERC attitude and strength of principle is likely to create a new opening for Constitution as well. It’s taken them three years longer than it should have to get to this point but it looks to me as if we may get that one, too, particularly given the strength of Constitution’s new petition to FERC.