FERC Denies Constitution Pipeline Request for Declaratory Order

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The setbacks keep coming for Constitution Pipeline Co. LLC, following the Jan. 11 rejection by the Federal Energy Regulatory Commission of the company’s Oct. 11, 2017 petition for a declaratory order.

Constitution filed the petition asking the FERC to find that, under section 401(a)(1) of the Clean Water Act, the New York State Department of Environmental Conservation (New York DEC) waived its authority to issue a water quality certification for the Constitution Pipeline Project. Constitution asserts that New York DEC failed to act within the statute’s time limit.

Federal Court Rules Against Constitution Pipeline Appeal

Constitution released this statement: “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.”

While FERC is the federal body charged with regulating interstate gas pipelines, section 401 of the Clean Water Act gives individual states the authority to reject projects that would degrade their water quality. New York had exercised that authority when it rejected the pipeline in September of 2016, but Constitution Pipeline Co. LLC challenged that decision, saying DEC failed to act in a reasonable amount of time. Represented by Earthjustice, Sierra Club and its partners intervened to oppose Constitution’s argument that New York had waived its Clean Water Act authority.

Read the 13-page FERC order here: Order on Petition for Declaratory Order

 

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