FERC Now Trying to Undermine State Rights under the Clean Water Act

While we’ve been fighting against PennEast, obviously many other pipeline battles are going on around the country.  A key player in many of these battles is the New York Department of Environmental Conservation (NYDEC).  NYDEC was key in denying the Constitution Pipeline by denying the pipeline company a Clean Water Act 401 Water Quality permit.  And they’ve been doing the same with other pipelines.

But the new FERC commissioners have been fighting back.  On a lateral project for the Millennium Pipeline in NY, NY DEC denied the pipeline company a CWA permit after FERC issued a Certificate of Public Convenience and Necessity.  But FERC nullified that denial in a recent ruling, and issued an order to proceed with construction for the pipeline.

NYDEC immediately asked for an Stay on that FERC Order and a Rehearing.

Yesterday, those requests were denied.  Which is of course expected – we are talking about FERC here.  But what wasn’t expected is the reasoning behind the denials.  The full FERC order is available here:

Click to access 20171115172233-CP16-17-003.pdf

Some of the FERC findings here are:

  1. The 1 year clock on CWA applications to agencies starts the minute they file them.  Even if they are woefully incomplete.
  2. NY DEC’s complaints that the pipeline will harm water quality in NY State are overruled by FERC.  FERC says their environmental assessment trumps the NYDEC’s evaluation.
  3. FERC argues that States opinions on these matters don’t count!  

See paragraphs 15, 16, 17, 18, and 27 in the FERC order for the details on these.

Obviously all of these issues are troubling, but the last one is the the most troubling for everyone fighting pipelines, including us with PennEast.  Here is what FERC says on the subject of State’s rights and the Clean Water Act:

“27. As a threshold matter, we disagree with the New York DEC’s contention that

New York DEC, as the certifying state agency, is the appropriate agency to interpret “any ambiguous terms of the CWA.”38 In general, courts do not afford deference to state agency interpretations of federal law even where state agencies are delegated substantial roles in cooperative federalist schemes.39 And while it is true that states are sometimes given deference by courts in interpreting federal law where a federal agency has approved a state agency’s plan or interpretation of federal law,40 that is not the case here. There is no evidence that the Environmental Protection Agency—the federal agency charged with primary federal oversight of the CWA41—has approved any of New York’s procedural regulations it purports to rely on, much less its interpretation of these regulations as applied to the CWA waiver provision.” (emphasis mine)

In this paragraph, FERC is arguing that States rulings on matters such as the CWA don’t matter if they are in conflict with a Federal authority (like FERC!).  This is a bald faced attempt to steal away States administrative rights under the CWA.

FERC of course is not the final arbiter here.  This matter will almost certainly be taken to courts of appeal by NYDEC, and will be watched very closely.  Meanwhile, we have to watch FERC,  NJDEP, and the DRBC very closely as their PennEast FERC decision draws near.

We should alert Governor-Elect Murphy and his staff to this situation as well, along with our State and Federal legislators.  FERC attempting to undermine State’s administrative rights under the CWA is completely unacceptable and we must fight back against this.  NJ in particular has extraordinary administrative rights under the CWA where we administer not only the 401 Water Quality permits, but also 404 Wetlands permits (which are ordinarily administered by the Army Corps of Engineers).  If FERC approves PennEast (which is almost certain), we must make certain that none of this line of reasoning is attempted in the PennEast project should NJDEP do the right thing and deny PennEast’s CWA applications down the line.

Ditto with the DRBC application as well.

Given the scattershot and morally bankrupt policies of our current Presidential Administration, it up to the States and other agencies to fight back to preserve our rights.  But that’s not going to happen unless we all stand up and let our State governments and agencies what is happening here.

Published by

Mike Spille

I'm a thinker, an analyzer, a synthesizer. Maybe not in that order. I live in West Amwell NJ with my wife Kristina, our two kids Day and Z, our two dogs Fern and Cinna, and three cats Ponce de Leon, Oliver, and Doolittle.

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