Federal Appeals Court Upholds Certification For Northern Access Pipeline
NEW YORK–The Northern Access Pipeline in late March won a legal victory that brought its construction a step closer to reality. It happened when a three-judge panel of the U.S. Court of Appeals for the Second Circuit rejected a petition for review by New York regulators and an anti-development group that sought to vacate a pair of orders by the Federal Energy Regulatory Commission.
The ruling also carries implications for state regulators who attempt to elide statutory limits on the amount of time they have to exercise their authority.
The proposed project, which is a 96-mile pipeline that would connect Western Pennsylvania natural gas fields to upstate New York, has become one of many interstate midstream projects hydrocarbon opponents have sought to stymie, press accounts note.
According to court documents, the key question at stake in New York State Department of Environmental Conservation and Sierra Club v. Federal Energy Regulatory Commission, National Fuel Gas Supply Corp. and Empire Pipeline Inc. centered on state regulators’ one-year deadline for issuing or denying Clean Water Act Section 401 certification. Complicating the matter, however, was an extension to which the Department of Environmental Conservation and National Fuel agreed. The court notes that DEC received National Fuel’s initial application on March 2, 2016, with the department requesting additional information in August and October of that year.
“In an attempt to finesse the one-year deadline, the DEC entered into an agreement dated Jan. 20, 2017, ‘revising the date . . . on which the application was deemed received to April 8, 2016.’ The agreement had the effect of extending the deadline for the DEC to issue or deny water quality certification for 36 days,” the ruling states.
It goes on to note that DEC denied National Fuel’s application on April 7, 2017, but FERC countered that the department waived its Section 401 authority when it missed the one-year deadline, which the commission held could not be extended by private agreement.
According to the court, “Section 401’s one-year deadline is mandatory in a sense that it does not merely ‘spur’ the agency to action, but it bars untimely action by depriving the agency of its authority after the prescribed time limit.”
Although DEC had argued in a different case that the permitting stopwatch should only start at the point in which an application was deemed complete, the court rejected that claim and said that since Section 401 makes no such distinction, “it cannot be interpreted to require a ‘complete’ application because that approach would allow a state agency not only to dictate when the review process can begin, but also to delay it indefinitely.”
The court went on to suggest that, “However sincere the DEC’s desire might have been to review the application as thoroughly and efficiently as possible by giving itself 36 more days, and however modest and reasonable that extension may have been, allowing the state to dictate the beginning of the review by agreement would ‘blur the bright-line rule into a subjective standard.’”
National Fuel is “very pleased” with the ruling, and “has committed to meet or exceed all safety codes and environmental protective measures in the construction and operation of this project,” press accounts quote a company spokesperson. “With these measures in place, the project will not put at risk or endanger any water resources or surrounding environments.”