Environmental -- 2017

Constitution Pipeline Co. v. New York State Dep't of Envtl. Conservation   (2nd Circuit)

Supporting FERC approval of pipelines

The NAM filed an amicus brief supporting Constitution Pipeline in the U.S. Court of Appeals for the Second Circuit. After extensive environmental, safety and economic review, the Federal Energy Regulatory Commission (FERC) approved the critical energy infrastructure project. However, the state of New York attempted to block the project by denying a Clean Water Act permit, undermining the collaborative approval process. Constitution is challenging New York’s denial of its Section 401 water permit for construction of the new natural gas pipeline.

For manufacturers, who use one-third of our nation’s energy, access to abundant and reliable energy sources are essential to our continued growth and ability to compete globally. While states play an important role under the Clean Water Act, they should not be allowed to use their permitting processes, including the issuance of water quality certificates, to unreasonably delay, exact concessions from, or scuttle federally approved projects.

Certification denials like this one on the development of much-needed natural gas infrastructure raise broad concerns. Total natural gas demand, driven in particular by manufacturing and power generation, is poised to increase by 40 percent over the next decade, and the U.S. supply is expected to increase by 48 percent over the same period. Further, explosive growth in shale gas requires the construction of new pipeline capacity.

On August 18, 2017, the Second Circuit dismissed the appeal, ruling that only the D.C. Circuit has the statutory authority to decide whether New York failed to act on the application in a timely manner. It also ruled that New York's review of the application under its own environmental laws on water quality is not preempted by the Natural Gas Act or statutory requirements governing FERC procedures. Thus, states have the power to veto pipeline projects that have secured approvals from a host of other federal and state agencies. Because there was sufficient evidence in the record to provide rational support for the choice made by the agency, it was upheld. The court rejected the argument that compliance with an industry-recognized standard for stream-crossing methods should have been sufficient.

Related Documents:
NAM amicus brief  (July 19, 2016)


© 2019 National Association of Manufacturers