Constitution Pipeline Co. v. Federal Energy Regulatory Commission

On February 28, 2019, the D.C. Circuit granted the Federal Energy Regulatory Commission’s (FERC’s) motion for voluntary remand of a proceeding in which a natural gas pipeline developer sought review of FERC’s determination that the New York State Department of Environmental Conservation (NYSDEC) had not waived its authority to issue a water quality certification for the pipeline project. The pipeline project at issue is the Constitution Pipeline, which would extend for approximately 124 miles from Pennsylvania through four counties in New York. The developer first submitted an application for a water quality certification to NYSDEC in 2013, and subsequently withdrew and resubmitted applications in 2014 and 2015. NYSDEC denied the application in April 2016, and the Second Circuit <a href="https://climatecasechart.com/case/constitution-pipeline-co-v-seggos/">upheld</a> the denial. FERC told the D.C. Circuit that it wished to reconsider the orders challenged by the pipeline developer in light of the court’s recent decision in Hoopa Valley Tribe v. FERC, in which the D.C. Circuit held that withdrawal and resubmission of water quality certification applications “does not trigger” a new one-year statutory period of review. FERC said Hoopa Valley left open questions about whether “wholly new” requests can trigger a new statutory review period and about “how different” an application would have to be to trigger a new review period. FERC said it would permit the parties on remand to submit supplemental materials on the significance of the Hoopa Valley decision.