On March 12, 2018, the United States Court of Appeals for the Second Circuit affirmed a Federal Energy Regulatory Commission (FERC) order finding that delays by the New York Department of Environmental Conservation (NYDEC) in reviewing Millennium Pipeline Company’s application for water quality certification constituted waiver of NYDEC’s authority under the Clean Water Act (CWA). As we detailed in an earlier blog post, FERC found that NYDEC’s delay exceeded the one-year statutory period established by CWA Section 401. The Millennium case is just one of several interstate natural gas pipeline projects that have faced delays associated with the CWA Section 401 permitting process. (See, e.g., Atlantic Bridge Project, Atlantic Sunrise Project, Constitution Pipeline, Northern Access Project, PennEast Pipeline, and Spire STL Pipeline.) The Court’s decision resolves the nearly three-year permitting process for the Millennium Valley Lateral Pipeline and clarifies for other projects (and state agencies reviewing those projects) that the one-year waiver period begins when the state agency receives the initial request for certification. Continue Reading Second Circuit Affirms Waiver Period for State Water Quality Certification Begins Upon Receipt of Request for Certification

This week, the U.S. District Court for the Middle District of Louisiana granted a preliminary injunction, halting construction of the $750 million Bayou Bridge Pipeline. Judge Shelly D. Dick concluded that the U.S. Army Corps of Engineers, in authorizing the project, did not provide sufficient explanation for how the proposed off-site mitigation would compensate for the loss of wetlands impacted by construction. In addition, the Court found the Corps’ environmental analysis failed to sufficiently consider and address historical impacts to wetlands from similarly situated pipelines. Thus, the Court held that these deficiencies likely violated the National Environmental Policy Act (NEPA) and ordered the 162-mile oil pipeline to halt construction within the Atchafalaya Basin, a large wetland habitat for a variety of fish and wildlife species and a critical component of regulating flooding and stream recharge in the region. As we recently saw with the D.C. Circuit’s decision to vacate authorizations for the Sabal Trail Pipeline, this is another example of courts and environmental organizations relying on errors in a federal agency’s NEPA analysis to justify enjoining pipeline construction or operations. Continue Reading Federal District Court Halts Construction of Louisiana Pipeline Due to Corps’ Failure to Explain Off-Site Mitigation

As reported in The Nickel Report, the United States Court of Appeals for the D.C. Circuit last week dismissed an interstate natural gas pipeline company’s challenge to the State of New York’s delay in issuing a water quality certification under section 401 of the federal Clean Water Act (CWA). The case is one of several pending across the country that involve a state’s authority to issue, deny, or waive a CWA water quality certification for interstate natural gas pipeline projects.

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On August 5, 2012, the Western District of Oklahoma denied Sierra Club’s attempt to seek a temporary injunction to stop commencement of construction of the southern leg of the Keystone XL pipeline project scheduled to begin August 6, 2012.  In mid-July, Sierra Club challenged the Army Corps of Engineer’s (Corps) Nationwide Permit 12 (NWP 12) permit as a violation of the CWA, NEPA, and the APA, and contended that the Corps’ issuance of a verification that the project fell within the scope of NWP 12 was improper.  NWP 12 is a general permit authorized by section 404 of the Clean Water Act (CWA) issued to linear construction projects, such as pipelines and other utilities.  In denying the injunction, the Court found that the Corps’ issuance of NWP 12 complied with the CWA, NEPA and the APA and that Sierra Club failed to show that the southern segment of the Keystone project would “have more than a minimal impact on the environment.”   Click here to read the Court’s Order in Sierra Club v. Bostick, 5:12-cv-00742 in the Western District of Oklahoma.

This bill, H.R. 3426, would amend the Clean Water Act to require the closure of (1) any oil storage or processing facility that is within one mile of 100 or more dwellings and has had two or more discharges within a 10 year period, or (2) where the facility is the source of groundwater contamination affecting 100 or more residential units. Closure would still be required where the discharge resulted from an act of God, war or negligence by the federal government. Click here to view a copy of the bill.