Will the Constitution Pipeline get built?

Last week, federal regulators overruled a New York state agency’s decision to block the Constitution Pipeline, a controversial natural gas link from Pennsylvania. But that’s not the final word. 

Until just a few weeks ago, there were good reasons to believe that a proposed natural gas pipeline linking Schoharie County in the Capitol Region to northern Pennsylvania would never get built. The New York Department of Environmental Conservation had rejected the proposed project, called the Constitution Pipeline, in 2016 because of its potential to harm water quality. In 2017, a federal court ruled that the state was within its rights to do so under the federal Clean Water Act. The U.S. Supreme Court declined to intervene last year.

Despite these setbacks, the Oklahoma-based Williams Companies never gave up on its effort to build the 125-mile pipeline through the Catskills. It has been helped by the Trump administration, which made several moves this year to weaken the ability of states to block fossil fuel projects, including executive orders and proposed federal rules changes. “We can't get energy because New York doesn't allow the pipelines to go through,” Trump said during a mid-August visit to western Pennsylvania, which is experiencing a boom in natural gas production due to the rise of fracking technology. “The radical left wants to do to America what they've done to New York: raise prices, kill jobs and leave our nation less independent and far less secure.” Two weeks later, the Federal Energy Regulatory Commission, whose members are appointed by the president, issued an Aug. 28 ruling that gave Williams a waiver to override state approval because the state had purportedly taken too much time to make a decision on the company’s original application for a permit.

Gov. Andrew Cuomo said on Sept. 6 that the DEC will fight back during an interview with WAMC. "We're looking at our legal rights now, but any way that we can challenge it, we will," Cuomo said. 

Three years after the DEC rejected the pipeline, the ultimate fate of the pipeline is up in the air. There are several avenues by which opponents of the pipeline could ultimately stop it from being built. This includes FERC reversing its decision, a possible rejection by the Army Corps of Engineers or civil disobedience actions that would somehow convince Williams that building the pipeline is not worth the cost. 

The more likely route to block the pipeline runs through the federal court system. There are several grounds to challenge FERC’s waiver to Williams, but they all focus on one key provision of the Clean Water Act that gives a state one year to approve or deny a proposed project before that state gives up its right to decide. 

For decades, this one-year window has been reset whenever an application is withdrawn and resubmitted. But a federal ruling earlier this year on hydroelectric plants straddling the California-Oregon border could give Williams the ability to upend precedent in a way that will not only allow the company to build the Constitution Pipeline but also make it easier to construct other fossil fuel infrastructure across the country.

The department may be joined environmental groups that have vowed to do whatever it takes to stop the Constitution Pipeline from ever getting built. “There's a long history of civil disobedience in New York to stop fracked gas infrastructure,” said Lee Ziesche, an organizer with the Sane Energy Project, a grassroots group devoted to replacing fracked gas infrastructure with renewable energy. “We'll follow the lead of the local community.”

There are good reasons to believe that the fight over the Constitution Pipeline will likely take years to resolve in federal court. Here is what you need to know about how the fate of the Constitution Pipeline will be determined by the federal courts. 

How did FERC overrule the state’s rejection?

Section 401 of the Clean Water Act allows states to block an interstate project like the Constitution Pipeline due to its effects on water quality. Construction of the pipeline would involve disrupting ecosystems in the 250 streams and rivers the pipeline would cross. The federal court system has already upheld the state’s reasoning on this point, but there was another provision in Section 401 that gives states one year to approve or deny a proposed project. 

For decades this one-year window has been reset whenever an application is withdrawn and resubmitted. A federal ruling earlier this year in the case of Hoopa Valley Tribe v. FERC has upended that precedent. The details of that case are complicated but they coincide with the Constitution Pipeline because of this one-year window under Section 401. Basically, a utility company operating existing hydroelectric facilities on the Klamath River delayed the FERC approval process for new operating permits for more than 10 years by applying and reapplying for state approvals from both Oregon and California. The Hoopa, a local Native American tribe, wanted the hydroelectric dams to close and were left out of negotiations on a settlement that would allow some facilities to remain open and others to close. The Hoopa sued FERC by arguing that their right to due process was violated because the company was just filing and refiling the same application permit without changing anything. Eventually, the tribe won.

This ruling opened the way for Williams Companies to seek its own workaround New York’s rejection of the Constitution Pipeline. The company first applied for a 401 permit in 2013 but withdrew and resubmitted its application several times in efforts to satisfy DEC regulators who requested additional information. The company ultimately did not provide all the information that the DEC requested, which led to the department rejecting its application in 2016. Once the Hoopa Valley ruling came through, Williams appealed to FERC to reexamine its own application and received a favorable ruling.

What comes next?

Before opponents can seek appeal to the federal courts to stop the project, opponents have to exhaust their appeals within the agency. They have until 5 p.m. on Sept. 27 to file a request for rehearing with FERC to challenge its Aug. 28 ruling. The agency then has 30 days to respond. Activists say that they expect that FERC will grant the rehearing, but not because it really intends to reexamine the issue. The commission is led by Neil Chatterjee, a former Republican operative who has been accused of politicizing the traditionally apolitical work of FERC since he became chair in 2017. By granting a rehearing, FERC can keep pipeline opponents in limbo as Williams pursues an approval from the Army Corps of Engineers, the final regulatory hurdle in the FERC approval process. Opponents, presumably led by the state DEC, could seek an emergency stay from the federal court, arguing that by delaying its final decision for so long FERC was violating opponents’ right to due process. 

So how will the courts get involved?

The DEC and activists have several lines of arguments that the Hoopa Valley case should not apply to the Constitution Pipeline. The first is to argue that the circumstances of the Hoopa Valley case were fundamentally different when it came to Section 401. For example, whereas the utility company in the Hoopa Valley case was withdrawing and refiling the same basic application again and again, that was not what happened with the pipeline. Williams withdrew its application on several occasions and then refiled with a more robust application. A second argument is that even if the Hoopa Valley case would apply to a project like the pipeline, the decision cannot be applied retroactively. “You don't usually go back three years and decide that somebody waived their rights based upon new law that exists three years later,” said Daniel Estrin, general counsel at Waterkeeper Alliance, an environmental advocacy organization that is involved in the case. “The delay issue is moot because the decision has been made, (Williams) didn't challenge it at the time and (Williams) shouldn't be able to hit rewind.”

There is also a legal concept known as “equitable estoppel,” which basically means that someone cannot complain about a process when she voluntarily took part in it, as Williams did with the proposed pipeline. Finally, there is the issue about whether Williams should have petitioned a court first before appealing to FERC for a waiver from New York’s state approval. Section 401 is written into law and federal courts have already upheld the state’s reasoning for rejecting the application. A regulatory agency like FERC should not be allowed to unilaterally upend what the courts decide, according to Anne Marie Garti, an attorney with Stop the Pipeline, a grassroots group in the Catskills that is fighting the pipeline. “FERC is basically putting itself in a position of overruling a circuit court decision.” 

FERC rejected all of these arguments when it made its ruling, but a federal court might see things differently.

How does this all fit into the big picture?

Environmentalists are pushing the DEC to deny all applications for fossil fuel infrastructure as part of efforts to combat climate change. Instead, they argue, the state should invest in renewable energy projects that would make natural gas pipelines unnecessary. It is important to note that the DEC only has authority to block such projects because of their possible effects on water quality, not because of concerns about climate change. The Constitution Pipeline and the proposed Northeast Supply Enhancement pipeline, which would transport natural gas from New Jersey to Long Island were rejected on water quality grounds, although Williams was allowed to reapply for a water quality permit and the DEC has yet to issue a final ruling on that application. 

Supporters of the pipelines – including Williams, elected officials and editorial boards – say that natural gas is a necessary fuel in the medium term. (Progressives dispute that premise.) In short, gas shortages will hit consumers hard if these pipelines are not approved, supporters say. “The Constitution project continues to represent much-needed energy infrastructure designed to bring natural gas to a region of the country confronting natural gas supply constraints that have resulted in some of the highest consumer energy prices in the country,” a spokesman for Williams said in a statement. National Grid, which would distribute the gas that would flow through the NESE pipeline, has already declared a moratorium on new gas hookups on Long Island, the necessity of which Cuomo has ordered the state Department of Public Service to investigate. 

But it is all about Section 401 in the end.

Arguments about the necessity of the Constitution Pipeline are legally beside the point. The merits of New York’s rejection have already been litigated and upheld – all the way to the U.S. Supreme Court. The only question that matters is whether a federal court ruling on a case involving hydroelectric facilities in California and Oregon can apply to a case in New York. FERC has issued a ruling that it is unlikely to reverse. The Army Corps of Engineers will determine the validity of the proposed pipeline on separate merits that may or may not block the pipeline. In any case, both sides of the issue show no signs of giving up on getting their way – and that path leads straight to the federal court system.