N.Y.S. Dep't of Envtl. Conservation v. Fed. Energy Regulatory Comm'n
884 F.3d 450
| 2d Cir. | 2018Background
- CPV Valley built a power plant in Orange County, NY; Millennium Pipeline sought to construct a 7.8-mile lateral to supply it and filed a NGA §7(c) certificate application with FERC on Nov. 13, 2015.
- Because the pipeline would cross streams, Millennium submitted a Clean Water Act §401 water quality certification request to the New York State Department of Environmental Conservation (the Department), received Nov. 23, 2015.
- The Department twice deemed the application incomplete (Dec. 7, 2015 and June 17, 2016); Millennium supplied additional information in August 2016.
- FERC issued its §7(c) certificate on Nov. 9, 2016 (subject to conditions); Millennium later asked FERC to find the Department waived its §401 authority for failing to act within one year.
- The Department denied the §401 request on Aug. 30, 2017, but FERC issued a Waiver Order on Sep. 15, 2017 finding the Department waived its §401 authority because it had not acted within one year of receipt; FERC denied rehearing and this petition for review followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the §401 one-year waiver starts on state receipt of the request or only after the application is "complete" | Department: review period begins when application is deemed complete by the state | FERC/Millennium: review period begins on receipt of the request | Court: begins on receipt; Department waived authority by failing to act within one year |
| Whether a state may indefinitely extend the §401 period by declaring applications incomplete | Department: completeness rule prevents premature or uninformed denials and preserves comment/coordination | FERC: allowing indefinite incompleteness would defeat statute’s bright-line one-year limit; states can deny without prejudice or request withdrawal/resubmission | Court: permitting denials without prejudice or resubmissions preserves state processes; statutory text bars indefinite tolling |
| Whether FERC properly issued a waiver order permitting construction without §401 certification | Department: FERC misapplied §401 and should have deferred to state process | FERC/Millennium: FERC correctly found waiver under §401’s plain language | Court: FERC properly found waiver and issued notice to proceed (subject to other conditions) |
| Whether FERC has jurisdiction under the Natural Gas Act over the in-state lateral pipeline | Landowner Intervenors: FERC lacks jurisdiction because lateral is wholly in-state and serves local plant | FERC/Millennium: lateral is part of an integrated interstate system transporting interstate gas, so FERC has plenary jurisdiction | Court: FERC has jurisdiction; pipeline is integrated with interstate commerce |
Key Cases Cited
- Constitution Pipeline Co. v. N.Y. State Dep't of Envtl. Conserv., 868 F.3d 87 (2d Cir. 2017) (discusses §401 timing and application withdrawal/resubmission effect)
- Petro Star Inc. v. FERC, 835 F.3d 97 (D.C. Cir. 2016) (procedural standing and scope of review principles cited)
- Alabama Rivers All. v. F.E.R.C., 325 F.3d 290 (D.C. Cir. 2003) (identifies EPA as the federal agency charged with administering the Clean Water Act)
- Mich. Consol. Gas Co. v. Panhandle E. Pipe Line Co., 887 F.2d 1295 (6th Cir. 1989) (interstate commerce principles for natural gas transportation)
- Okla. Nat. Gas Co. v. FERC, 28 F.3d 1281 (D.C. Cir. 1994) (FERC jurisdiction over laterals integrated into interstate pipeline systems)