New York State Department of Environmental Conservation v. Federal Energy Regulatory Commission

The Second Circuit Court of Appeals dismissed the New York State Department of Environmental Conservation’s (NYSDEC’s) appeal of FERC orders determining that NYSDEC waived its authority to provide a water quality certification under Section 401 of the Clean Water Act for a 7.8-mile natural gas pipeline that connects a new power plant to an existing interstate pipeline. The pipeline’s developer submitted its request for certification in November 2015, and NYSDEC twice requested additional information to complete the application; in August 2016, the developer submitted responses to the second request. NYSDEC denied the pipeline developer’s request for certification in August 2017, citing FERC’s failure to adequately consider greenhouse gas impacts in its environmental review. The Second Circuit agreed with FERC that Section 401 required NYSDEC to act on the request for a certification within one year of receipt of the request, and that this time limit did not apply only for “complete” applications. The Second Circuit also rejected a challenge by intervenors to FERC’s jurisdiction over the pipeline; the court said the 7.8-mile pipeline was part of an “integrated system” to transport gas in interstate commerce even though it was located entirely within New York.

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FERC denied NYSDEC’s request to reopen the record or rehear FERC’s November 2016 authorization of the project. FERC said New York State Department of Environmental Conservation’s contention that the D.C. Circuit’s decision in Sierra Club v. FERC, No. 16-1329, required FERC to quantify the project’s downstream greenhouse gas emissions and consider their impacts was untimely and that, in any event, the analysis had already been done.

On November 15, 2017, FERC denied the New York State Department of Environmental Conservation’s (NYSDEC’s) request for rehearing of FERC’s determination that NYSDEC had waived its authority to issue a water quality certification for the Valley Lateral pipeline project, a 7.8-mile pipeline and related facilities that will transport natural gas from the mainline system to a new power plant in Orange County, New York.

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