Federal court upholds state’s right to stop natural gas pipeline under the Clean Water Act

By Mary C. Serreze, MassLive / Springfield Republican
August 21, 2017

Fossil fuel foes are claiming victory after a federal appeals court on Friday upheld New York’s move to block a federally permitted interstate natural gas pipeline that failed to meet state water quality standards.

The New York Department of Environmental Conservation acted properly in 2016 when it denied Constitution Pipeline a Section 401 certificate under the U.S. Clean Water Act, effectively vetoing the project, the Second Circuit Court of Appeals ruled.

The judicial review “carries nationwide implications, as it will invariably influence states’ decisions to block pipelines under the Clean Water Act across the country,” said the Natural Resources Defense Council in a statement.

“This victory is an important reminder to all states that they have the power to stop harmful pipeline projects,” asserted the New York-based Waterkeeper Alliance.
Maya K. van Rossum, leader of the Delaware Riverkeeper Network, emphasized that the appeals court decision does not automatically apply to other states. However, she said it “sends a strong signal” on how other circuits could rule.

“It’s black-letter-law clear that states have authority to uphold their own clean water standards when it comes to natural gas pipelines,” she told The Republican. “The key point is that a federal appeals court recognized and upheld that authority.”
Pipeline developers ‘shot themselves in the foot’

In its decision, the Second Circuit noted that Constitution failed to address certain water resource impacts during state environmental review. The company failed to consider alternative routes, and also declined to describe less harmful methods for stream crossings, despite repeated requests for information.

Nearly 100 miles of the pipeline would traverse New York, crossing 251 water bodies, including 87 trout streams.

Patrick Parenteau, a professor at Vermont Law School, said he was astounded that Constitution failed to cooperate with state regulators.

“What were they thinking?” he said. “They shot themselves in the foot.”

The court hung its hat on Constitution’s failure to provide project information, he said. “I tell my budding law students — if you’re representing an energy company, and a state agency asks you for information, you’d better give it to them.”

In denying the clean water permit, Constitution claimed New York intruded upon the Federal Energy Regulatory Commission’s “exclusive jurisdiction” over natural gas pipelines. The project gained overall approval from FERC in 2014.

Parenteau said that states do have legal authority to stop natural gas pipelines. However, FERC has been “stubborn” and “slow to accept the fact that states have a veto power” over their federal licenses.

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