FERC Revives William’s Constitution Gas Pipeline Project, Rejecting New York’s Permit Denial

The Federal Energy Regulatory Commission on Aug. 29 found that New York waived its water quality certification authority for Williams Co.’s Constitution Pipeline by failing to act within the one-year timeframe under the Clean Water Act. The decision reverses the agency’s 2018 order that upheld New York’s permit denial. The commission followed a recent ruling by the D. C. Circuit Appeals Court in a similar case involving PacifiCorp’s repeated withdrawal and resubmission of permit requests for a hydropower project under an agreement with states to defer the one-year deadline. The court found that the resubmissions did not constitute a “new request,” and the states waived their authority by failing or refusing to act within the timeframe.

Last January, the commission rejected Constitution Pipeline’s request to invalidate the New York Department of Environmental Conservation’s 2016 decision denying a water quality permit for the project. The company said that it first submitted its application in August 2013, and refiled several times at the department’s request, but the state agency argued that the review period did not begin until the final application was filed in April 2015. At that time, the commission denied the company’s request based on its long-standing interpretation that when an application is withdrawn, “no matter how formulaic or perfunctory the process of withdrawal and resubmission, the refiling of an application restarts the one-year waiver period.” In August 2017, the Second Circuit Court of Appeals upheld the state’s denial.

In the hydropower project case, Hoopa Valley v. FERC, the court found that the commission arbitrarily treated resubmissions as independent requests subject to new review periods although each refiling involved the same project. PacifiCorp had struck a deal with California and Oregon to withdraw and resubmit permit applications each year to avoid waiver.

In its latest decision, FERC found that “New York encouraged Constitution’s withdrawal and resubmission of its application for the purpose of avoiding the waiver period.” The 125-mile pipeline, designed to ship up to 650,000 dekatherms per day from the Marcellus Shale to New York, received FERC approval in December 2014.