In denying a summary judgement motion of the proposed Millennium Pipeline, a federal court in Washington, DC Friday affirmed a 2003 ruling by the Commerce Department that cleared the way for New York State to block the construction of the 700 MMcf/d pipeline project from Lake Erie to New York City.

The U.S. District Court for the District of Columbia, at the same time, granted the motions for summary judgement of New York State, the Commerce Department and several small towns in New York State.

Millennium filed a complaint with the court in February 2004, seeking review of then-Commerce Secretary Donald Evans’ decision rejecting Millennium’s appeal of New York’s efforts to block the natural gas pipeline under the Coastal Zone Management Act (CZMA). The Federal Energy Regulatory Commission approved the pipeline project in September 2002, but New York put the brakes on the Millennium project because it claimed that adverse effects along portions of the planned route were inconsistent with the state’s coastal management plan.

The U.S. District Court could have set aside Commerce’s decision if it found it to be arbitrary and capricious, an abuse of discretion or otherwise not in accordance with the law. Millennium, in its complaint, argued that the Commerce secretary “exceeded his statutory authority” by extending the deadline for the state to respond to the pipeline’s consistency application beyond the six months allotted under the CZMA.

The pipeline further claimed that the Commerce secretary “acted arbitrarily and capriciously and abused his discretion by failing to accord preclusive effect to the FERC findings” pertaining to the project.

But the district court disagreed with Millennium, noting the time clock for New York State to respond did not start running when the pipeline filed its certification application in November 1998 because the application was incomplete. “In this case, New York sent timely notice to Millennium and the concerned federal agencies of Millennium’s incomplete certificate and specified the necessary data and information Millennium was obligated to provide in order for its consistency review to commence. Therefore, the start of the six-month time period to address consistency was tolled until all necessary information and data was received by New York,” the court said.

The district court also disputed Millennium’s claim that since a segment of the project to be built across the Catskill Aqueduct would not “affect any land or water use or natural resource of the coastal zone of the state,” it was not subject to review under New York’s CZMA.

“The evidence in the record does not support Millennium’s argument,” according to the court. “The FEIS [final environmental impact statement] discusses the Catskill Aqueduct crossing as an environmental consequence of the project. The FEIS also notes that the New York City Department of Environmental Protection has expressed continuing concern about the pipeline crossing in this area since any failure of the pipeline would result in the interruption of water supplies to New York City. Accordingly, the court affirms the secretary’s decision that the Catskill Aqueduct crossing was subject to CZMA review because it had a ‘reasonably foreseeable effect on any coastal use or resource.'”

In its December 2003, Commerce also ruled that Millennium was not consistent with the objectives of CZMA because the pipeline had failed to demonstrate that there were no reasonable pipe alternatives available. Millennium said it had claimed that there were no reasonable and available alternative pipeline routes across the Hudson River and the Catskill Aqueduct. “But the court is not persuaded by Millennium’s arguments,” it said.

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