After new setback, Constitution Pipeline says it will fight FERC order

  • Jon Hurdle
Trees cut on a Susquehanna County property in March 2016 to make way for the proposed Constitution Pipeline. The company says it will fight a FERC order upholding New York State's denial of a permit for the project.

Jon Hurdle

Trees cut on a Susquehanna County property in March 2016 to make way for the proposed Constitution Pipeline. The company says it will fight a FERC order upholding New York State's denial of a permit for the project.

The builder of the proposed Constitution Pipeline from Pennsylvania to New York said it will ask the Federal Energy Regulatory Commission to take another look at its recent ruling that upholds New York State’s denial of a water-quality permit for the troubled project.

Constitution Pipeline said it will seek a rehearing or appeal FERC’s decision on Jan. 11, in which the commission declined to overturn the permit decision by New York State’s Department of Environmental Conservation (DEC). That decision has stopped the company from beginning to build the 124-mile natural gas line.

The company, a unit of the Williams Companies, argues that DEC waived its right to issue a water quality permit under Section 401 of the federal Clean Water Act because it did not act within a “reasonable time,” which FERC interprets as one year.

Constitution says FERC got it wrong by failing to recognize that the waiver applied to the company’s application.

FERC’s action is the latest setback for the project, which has also failed to persuade an appeals court to overturn the DEC’s permit denial.

The DEC denied the water permit in April 2016, three years after Constitution first applied, and after the company twice withdrew and then resubmitted its application. In its denial, the department said Constitution had not provided enough information to allow the DEC to determine whether the pipeline project would meet water-quality standards.

Anne Marie Garti, an environmental attorney and founder of the group Stop the Pipeline, said New York’s actions will likely be upheld despite Williams’ appeals.

“Well this pipeline was doomed on April 22, 2016 when New York State DEC denied the 401 water quality the certification,” Garti said. “That was it. Everybody in the world knows that the fight was over in 2016.”

Garti said she wasn’t surprised by FERC’s decision, because federal appeals courts have confirmed the rights of states to deny Clean Water Act permits for infrastructure projects.

The DEC’s action follows the state’s decision in 2014 to ban fracking for natural gas on the grounds of its concerns about threats to public health. The industry’s opponents hailed that decision as an important victory.

On Monday, New York Governor Andrew Cuomo welcomed the FERC ruling, and said the pipeline would represent a threat to water quality and the environment.

“I commend the Federal Energy Regulatory Commission for ruling in favor of New York’s efforts to prevent this project from moving forward,” he said in a statement.

In response to the FERC order, Constitution said it was disappointed but would continue to fight for what it says is an important piece of energy infrastructure that would enable natural gas customers to enjoy cheap and abundant supplies from Pennsylvania’s Marcellus Shale.

Despite lacking permits from New York, the company began in early 2016 to clear trees on some parcels of private land in Pennsylvania’s Susquehanna County. The landowners included the Holleran family, who own 23 acres near New Milford, and have used the isolated parcel to farm maple syrup since the 1950s.

In March 2016, the Hollerans lost several acres of maple trees to tree-cutting crews who were protected by federal marshals armed with semi-automatic firearms. The marshals had been ordered to attend the tree cutting by a federal judge who also ruled that Constitution had a right to enter the property under Pennsylvania’s eminent domain law.

Megan Holleran, a spokeswoman for the family, welcomed the FERC ruling but said it would have been better if the commissioners had done so much earlier.

“It’s just incredibly frustrating because literally what we were asking Williams …was ‘can you guys just please wait to cut down our trees until you’re certain you have to?’ That’s exactly what we were saying to them and they just ignored us and cut down all the trees,” Holleran said.

“We are still seeking compensation, both for the original eminent domain seizure of our land and for the unnecessary damage done by Williams, but it’s hard to move forward while Williams is still pretending the project hasn’t changed,” Holleran wrote in an email.

“Ideally, we would like possession of the land returned to our family, and compensation for the loss of our trees and the damages done.  Williams has made no effort whatsoever to initiate the compensation hearings we are entitled to, so our progress has been slow.”

In its ruling, FERC defended its long-held position that an agency such as DEC should have a year to decide on a pipeline application without waiving its rights under Section 401. The commission also rejected Constitution’s argument that the waiver should apply for periods of less than a year in DEC’s case, claiming that DEC staff stopped communicating with the company for eight months prior to the denial.

“We decline to do so because entertaining, on a case-by-case basis, challenges to a certifying agency’s processing of a water quality certification would create uncertainty for both state certifying agencies and applicants, and is contrary to Commission precedent in both hydroelectric and natural gas proceedings,” the commission said in a 13-page ruling.

The commission also defended DEC, saying there was no evidence that it had delayed action on Constitution’s application for more than a year.

“The record does not show that NY DEC in any instance failed to act on an application that was before it for more than the outer time limit of one year,” the ruling said.

Susan Phillips contributed to this story.

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