water quality certification

The US Court of Appeals for the Third Circuit recently issued two decisions concerning the relationship between the Natural Gas Act (NGA) exclusive jurisdiction provision at 15 U.S.C. § 717r(d)(1) and the administrative review process for state-issued environmental permits for interstate natural gas pipeline projects. These decisions are briefly described as follows:

  • In Delaware Riverkeeper et al. v. Sec PA Dept. Env. Protection, et al. (Sept. 4, 2018), the court held that only “final” state agency actions are reviewable under the NGA’s exclusive jurisdiction provision. The court determined, however, that the state-issued water quality certification at issue was reviewable “final” action even though it was subject to further administrative review because, under the relevant state law, the certification had legal effect as issued and was the final action of the agency that issued it.
  • In Township of Bordentown, New Jersey et al. v. FERC et al. (Sept. 5, 2018), the court held that state administrative review of environmental permits issued for natural gas pipeline projects is not preempted by the NGA’s exclusive review provision, as the NGA only eliminates state court review of interstate pipeline-related state agency orders.

Continue Reading Third Circuit Decisions “Clarify” the Extent of Federal Appellate Court Jurisdiction Over Appeals of Pipeline Permits That Are Subject to State Administrative Review

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

On September 15, 2017, the Federal Energy Regulatory Commission (FERC or the Commission) issued an order in which it concluded that delays by the New York Department of Environmental Conservation (NYDEC or the Department) in processing Millennium Pipeline Company’s application for Clean Water Act (CWA) water quality certification constituted a waiver of the certification requirement. The order resolves a lengthy saga regarding water quality certification for Millennium’s Valley Lateral Project. It reaffirms previous FERC precedent establishing that the one-year waiver period for CWA water quality certification decisions by state agencies begins when  the state agency receives a written application for certification, regardless of the state agency’s determination that the application is incomplete or requests for further information.

Continue Reading FERC: Water Quality Certification Waiver Period for Pipeline Projects Begins Upon Receipt of a Written Request for Certification

As previously reported on PipelineLaw, the ongoing controversy over an April 2016 decision by the New York Department of Environmental Conservation (NYDEC or the Department) to deny a Clean Water Act (CWA) water quality certification to Constitution Pipeline Company (Constitution or the Company) for its interstate natural gas pipeline project in Pennsylvania and New York highlights tensions between federal and state oversight of such projects. In the latest chapter of this controversy, the Second Circuit recently denied Constitution’s petition for review of the NYDEC decision, concluding that (1) the Court lacked jurisdiction over the Company’s claims to the extent that they challenged the timeliness of the decision; and (2) the Department acted within its statutory authority in denying the certification, and its denial was not arbitrary or capricious.

Continue Reading Second Circuit Upholds State Veto of Constitution Pipeline Project Via Denial of Water Quality Certification

The Third Circuit held in a highly anticipated recent decision that state actions on water quality-related permits for interstate natural gas pipeline projects are reviewable only in the federal Circuit Courts of Appeals, in accordance with the Natural Gas Act (NGA).  The case, Delaware Riverkeeper v. Secretary, Pennsylvania Department of Environmental Protection et al., concerned petitions for review filed by environmental and conservation groups in New Jersey and Pennsylvania to challenge state permitting decisions for the Transcontinental Pipeline (Transco) Leidy project.  Specifically, the groups challenged the decisions of the Pennsylvania and New Jersey Departments of Environmental Protection (PDEP and NJDEP, respectively) to issue water quality certifications under Section 401 of the Clean Water Act (CWA) and, in the case of the NJDEP, other water quality-related permits required under State law.

Continue Reading Federal Appellate Review of State Agency Decisions for Interstate Natural Gas Projects Confirmed

Recent developments in cases brought by Constitution Pipeline Company to challenge New York’s denial of certain water quality authorizations highlight tensions between federal and state oversight of interstate natural gas pipeline construction projects, and the accompanying potential for costly and protracted delays.  Under the scheme of “cooperative federalism” set up by many environmental statutes—such as the Clean Water Act (CWA), the Clean Air Act, and the Endangered Species Act—even where a natural gas project is under the exclusive federal regulatory jurisdiction of the Federal Energy Regulatory Commission (FERC), it will often require state-issued permits or other authorizations to go forward.  The controversy in the pending Constitution Pipeline cases concerns the extent to which a state may assert authority over discrete aspects of a federally-regulated project in a manner that delays or prevents its construction.

Continue Reading Constitution Pipeline Cases Reflect Tension in States’ Roles in Permitting Natural Gas Projects