Commission Pipeline

The Federal Energy Regulatory Commission (FERC) has been allowed yet another two-year extension for the Constitution Pipeline to be able to provide service. Their sponsors will proceed with means of utilizing all legal options available to them in this roughly three-year fight against the DEC (the New York State Department of Environmental Conservation), which initially had denied them a much-needed permit.

The FERC’s order will assist in extending the time that the Constitution Pipeline Co. LLC will have to build and will also help to place this particular project into full service. The extension came shortly after the company filed a request back in June of this year. A former extension was due to expire earlier this month, and now the project has until at least December 2nd of 2020 to come online. Constitution Pipeline would carry Appalachian gas from Susquehanna County, PA, over 124 miles to an interconnect with the Tennessee Gas Pipeline in Schoharie County, NY and the Iroquois Gas Transmission.

In 2014, the Constitution Pipeline was granted a FERC certificate that permitted them the opportunity to proceed with both the construction and the operation of the project. However, since 2016, sponsors have been battling the Department of Environmental Conservation, due to the fact that the agency completely revoked the section 401 WQC (water quality certificate) that is mandatory via the Clean Water Act. Recently, the FERC came to the conclusion that it would extend the deadline of the project to at least six years following the certificate being issued.

The FERC noted that, “the Commission has frequently authorized infrastructure projects with initial deadlines of four, five, or six years, without expressing concerns about the certificate order’s economic or environmental findings becoming stale.” They also went on to make note of the fact that these regulations do not specifically create “a particular time period to complete construction of an authorized natural gas facility.”

The DEC denied the WQC specifically over disagreements regarding trenchless crossings as well as the contention of the agency. In fact, the DEC stated that it simply did not have ample information to actuate the overall impacts of the environment. Constitution Pipeline has basically zipped through both the legal and the regulatory processes.

Constitution Pipeline had additionally taken action by filing a petition to the U.S. Court of Appeals for a Second Circuit to come under review of the DEC’s overall decision. The challenge was denied by a panel of three judges who ruled that the DEC was eligible to this regulatory review. Constitution Pipeline eventually petitioned for a rehearing of the case, which also was denied. They additionally tried to petition with the United States Supreme Court, to no avail.

The FERC rejected an opportunity to waive the regulatory authority of New York. In September, Constitution Pipeline petitioned the U.S. Court of Appeals for the D.C. Circuit to hear challenges against the DEC’s waiver order, and the DC Circuit delayed the case. They instead decided that it would be in the best interest to hear a different matter that would challenge the jurisdiction of the FERC with regards to a hydroelectric project of which would allow for the opportunity to have like questions arise about WQCs. Constitution Pipeline is most certainly not the only corporation that has faced severe resistance in New York, whereby countless regulators have gone about denying essential permits that are needed for other types of natural gas infrastructure plans as the state keeps pushing forward to advocate for reductions in emissions and also renewable energy generation.