Constitution Pipeline Co. v. Seggos

On October 19, the Second Circuit Court of Appeals denied a natural gas pipeline developer’s petition for panel rehearing or rehearing en banc of its ruling that upheld the New York State Department of Environmental Conservation’s denial of a water quality certificate for the pipeline.

The developer argued in a petition for panel or rehearing en banc that the Second Circuit’s conclusion that New York could consider alternative routes for Natural Gas Act projects conflicted with other precedent of the Second Circuit as well as precedent of the Supreme Court and other circuit courts of appeals. The developer also argued that the Second Circuit had prematurely decided the merits of the case when it should have held the case in abeyance until the Federal Energy Regulatory Commission (FERC) determined whether the New York State Department of Environmental Conservation had waived the water quality certificate requirement by taking too long to render a decision on the developer’s application.

The Second Circuit Court of Appeals upheld the New York State Department of Environmental Conservation’s (DEC’s) denial of an interstate natural gas pipeline developer’s application for a Water Quality Certificate under Section 401 of the Clean Water Act. As a threshold matter, the Second Circuit concluded that it lacked jurisdiction to consider the developer’s argument that DEC had waived its right to rule on the application because it failed to act on the application within the time period required by the Clean Water Act. On the merits, the Second Circuit rejected the developer’s contention that DEC’s action was preempted by FERC’s performance of its obligations under the National Environmental Policy Act. The Second Circuit said the Natural Gas Act and Clean Water Act entitled DEC to conduct its own review of the pipeline project’s impacts on New York waterbodies. The Second Circuit found that the denial of the application after the developer failed to provide information DEC had requested was not arbitrary and capricious. In its brief defending the denial, DEC noted that removal of riparian vegetation to build the project could increase water temperatures and that climate change could exacerbate these impacts in the long term.

The New York State Department of Environmental Conservation (NYSDEC) filed a brief opposing Constitution Pipeline Co., LLC’s challenge to NYSDEC’s denial of a Clean Water Act Section 401 water quality certification for the Constitution Pipeline Project, approximately 100 miles of which passes through New York. DEC said that its denial was “timely, rational, supported by the record, and consistent with the applicable federal and state legal standards.” In its brief, DEC noted that increased water temperatures caused by removal of riparian vegetation could limit habitat suitability for cold-water species, and that such impacts could be exacerbated by climate change in the long term. Two other briefs were filed by intervenors opposing the challenge, including a brief from a group called Stop the Pipeline (STP). STP’s arguments included a call for additional environmental review to consider supplemental material regarding risks of extreme weather caused by climate change.