Court rejects NYSDEC’s appeal of FERC’s Valley Lateral ruling

A US federal appeals court denied the New York Department of Environmental Conservation’s appeal of the Federal Energy Regulatory Commission’s decision that NYSDEC waived authority to issue or deny a water-quality certification for the Millennium natural gas pipeline’s 7.8-mile Valley Lateral when the state agency did not act within the federal Clean Water Act’s Section 401 1-year timeframe.

A US federal appeals court denied the New York Department of Environmental Conservation’s (NYSDEC) appeal of the Federal Energy Regulatory Commission’s decision that NYSDEC waived authority to issue or deny a water-quality certification for the Millennium natural gas pipeline’s 7.8-mile Valley Lateral when the state agency did not act within the federal Clean Water Act’s Section 401 1-year timeframe (OGJ Online, Sept. 18, 2017).

“We conclude that the department waived its authority to review Millennium’s request for a water-quality certification under the Clean Water Act by failing to act on that request within 1 year,” Circuit Judge Jose A. Carbanes said in a Mar. 12 decision in US Appeals Court for the Second Circuit in New York. “We also conclude that FERC does have jurisdiction over the pipeline. Accordingly, we deny the petition for review.”

The decision effectively will allow construction of the project in Orange County, NY, to resume. Three organizations welcomed it.

“This decision is great news for New York workers and consumers who have been harmed by attempts to stifle energy infrastructure modernization in the state,” API New York Executive Director Karen Moreau said in Albany. “Further, additional pipeline infrastructure will help New Yorkers guard against potential gas shortages.”

Business Council of New York State Pres. Heather C. Briccetti said, “The decision shows that [NYSDEC] cannot impede the transport of interstate natural gas by refusing to act on a request for a certification.”

In Houston, Consumer Energy Alliance Pres. David Holt said the ruling sent a clear message not only to New York regulators, but also state agencies across the country where officials often try to add unnecessary and redundant delays during permit application reviews.

“Critical pipeline projects have been held up with permitting processes that are increasingly being abused in an effort to delay development. Unfortunately, low-income families, seniors, and households across the Northeast and New England are left with the bill,” Holt said.

“Those who rely on affordable energy have already endured their third major Nor’easter this year—and because of regulatory overreach and a lack of pipeline capacity—paid the highest price for natural gas in the industrialized world in January,” Holt said. “The region’s supply situation was so bad this winter that they imported Russian LNG when ample supplies of domestic energy were available and waiting for delivery.”

Contact Nick Snow at nicks@pennwell.com.

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