Daily GPI / Regulatory / Infrastructure

Constitution Tells FERC Not to 'Tolerate' New York Regulatory 'Tactics'

Constitution Pipeline Co. LLC on Monday asked FERC to reconsider its decision upholding the New York State Department of Environmental Conservation’s (DEC) authority to deny a water quality certification (WQC) for the long-delayed natural gas project.

In yet another move to exhaust all available options in their quest to get the 124-mile pipeline built, Constitution’s sponsors again argued in a request for rehearing that the DEC took far too long to make a decision about the WQC application, which the state ultimately denied after about three years of review. 

Section 401 of the Clean Water Act (CWA) stipulates that a state waives its right to issue a WQC if it fails to act within a “a reasonable period of time,” or one year, Constitution argued in the latest filing. “The test for waiver is unambiguous and prescriptive, and must be applied by the Commission as the lead federal agency,” the company wrote in its request.

Last month, the Federal Energy Regulatory Commission denied Constitution’s petition asking it to waive DEC’s authority under the CWA. The project received a FERC certificate in December 2014. It initially filed for a WQC in August 2013, but withdrew and resubmitted its application twice, which DEC argued reset the one-year deadline it had to make a decision each time. FERC agreed.

Saying the pipeline is “critical” to markets in the Northeast and adding that its need is “painfully apparent” in the region, where natural gas prices recently spiked with cold temperatures, Constitution said FERC “should not tolerate” New York’s “dilatory tactics.” If it stands, Constitution said, the Commission’s decision would enable DEC to “extend the jurisdictional deadline in Section 401’s waiver provision beyond a reasonable period and well beyond the one-year outer limit for state action.”

New York has battled other pipeline projects as well, denying WQC’s for Millennium Pipeline Co. LLC’s Valley Lateral project and National Fuel Gas Co.’s Northern Access expansion.

Constitution filed its petition for waiver last year after the U.S. Court of Appeals for the Second Circuit denied its challenge to the DEC decision. It later filed a petition for a rehearing of the case en banc, which was denied as well. Shortly after FERC refused to waive New York’s authority, Constitution also petitioned the U.S. Supreme Court to review the lower court’s ruling.

The pipeline would provide 650,000 Dth/d of takeaway capacity in northeast Pennsylvania. About 100 miles would cross New York. Constitution is backed by Williams, Cabot Oil & Gas Corp., Piedmont Natural Gas Co. Inc. and WGL Holding Inc.

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