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FERC Improperly Strips States of Their Legal Authority in the Certification Process

The Clean Water Act (CWA) prohibits FERC from issuing a Certificate of Public Convenience and Necessity prior to receiving a Clean Water Act Section 401 Certification from states impacted by a proposed project.

• Section 401 of the CWA states: “no [federal] license or permit shall be granted until the certification required by this section has been granted or waived.” 33 U.S.C. § 1341(a)(1).
• Several courts, including the Supreme Court, have elaborated on the CWA’s authority, stating:
  • “without [Section 401] certification, FERC lacks authority to issue a license.”   (1 ) and
  • Section 401 “requires States to provide a water quality certification before a federal license or permit can be issued...”(2 )

In addition, this legal authority preserved by the terms of the Clean Water Act, is specifically referenced and preserved in the federal Natural Gas Act.

Despite the clear legal mandate that State Section 401 Certification should precede federal approvals, FERC, with court acquiescence, circumvents the requirement by issuing conditional Certificates -- including language that the FERC Certificate is conditional on a company securing state CWA 401 Certification.  While this “conditional” language is used to rationalize FERC’s advance approvals, FERC’s failure to fully enforce the condition undermines the truthfulness of the rationalization.  In fact, FERC does not fully enforce the conditional mandate before allowing pipeline companies to exercise the power of eminent domain, to engage in preliminary construction activities such as tree felling, or to undertake full construction on some segments of the project prior to securing CWA 401 Certifications from all impacted states.  In fact, FERC often wastes no time in authorizing the use of eminent domain and irreparable aspects of construction such as tree clearing, once the FERC Certificate has been issued, but prior to state CWA 401 Certification from all affected states, (Attch 1) sometimes issuing them just hours after receiving a request. (Attch 3)

As a result, FERC undermines the rights of states to prevent pipeline construction activities that will result in violation of state water quality standards by using their CWA 401 Certification authority to reject a project outright or to mandate modifications regarding the route, construction practices and/or mitigation obligations. More recently, FERC has overtly stripped a state of its CWA 401 Certification authority by rejecting the state’s denial of such a certification.

By way of explicit examples and the resulting harms:

Northern Access 2016 Project (FERC Docket No. CP15-115):

In early 2016, National Fuel Gas Supply Corporation and Empire Pipeline, Inc. (collectively National Fuel) submitted  401 Water Quality Certification application materials to NYSDEC, seeking the state’s approval under the CWA to construct and operate the Northern Access 2016 Project, which would carry fracked gas from Pennsylvania to Canada via New York.  National Fuel supplemented the application multiple times. 

• On January 20, 2017, the NYSDEC and National Fuel entered into a written agreement that for the purposes of CWA decisionmaking, both parties agreed that the date of application submission would be deemed to be April 8, 2016, "[t]hereby extending the date the NYSDEC has to make a final determination on the application until April 7, 2017”. (Attch 16)
• On January 25, 2017 NYSDEC published noticed that the application was finally deemed complete. (3)
• On February 3, 2017, FERC issued Certificates of Public Convenience and Necessity to National Fuel. (4)
• On April 7, 2017, within one year from the agreed upon date for application submission, NYSDEC denied National Fuel’s application for 401 Certification and for stream and wetlands disturbance permits after finding that “the Application fails to demonstrate compliance with New York State water quality standards” and “fails to avoid or adequately mitigate adverse impacts to water quality and associated resources.” (Attch 17)

National Fuel and Empire appealed the NYSDEC denial of the 401 Certification.  But inexplicably, while the court case was ongoing, FERC in August of 2018 overturned NYSDEC’s denial, falsely asserting that the state had not met the one year time frame established for review and either approval or denial, totally ignoring the legally arrived at agreement between the state and National Fuel.  August 14, 2018, the state urged FERC to reconsider its overturning of the state denial by file a rehearing request. Thereafter, in February 2019 the Second Circuit vacated the state 401 Certification denial, stating that “Although this is a close case, the denial letter here insufficiently explains any rational connection between facts found and choices made,” and remanded the NYSDEC "to more clearly articulate its basis for the denial." (5) The court did not rule upon the one year issue.  

Instead of providing the state with the opportunity to respond to the Court’s request that NY state better explain how the pipeline would violate state environmental standards, on April 2, 2019 FERC issued an order denying the state rehearing. (6) NYSDEC responded that it “vehemently disagrees with FERC's decision” and that they are “reviewing FERC’s misguided decision,” and “will continue to vigorously defend our decision and our authority to protect New York State’s water quality resources.” (7)

The portrait painted by this case is that at every turn FERC sought to override the state’s authority, even to the point of misrepresenting the truth in order to deny the state of NY its rightful legal authority pursuant to the federal Clean Water Act.  

Sabal Trail (FERC Docket No. CP15-17):

FERC issued a Certificate of Public Convenience and Necessity for Sabal Trail in February 2016, before CWA 401 Certifications were issued by Alabama and Georgia, and before an Army Corps section 404 permit was issued. FERC began approving construction in summer 2016, including through private lands for which no court date had yet been set to settle eminent domain claims. (Attch 7) Sabal Trail was later challenged in Sierra Club v. FERC, 867, F.3d 1357, 1373 (D.C. Cir. 2017).  The court ultimately ruled that FERC had violated federal law in its approval of the project. However, given FERC’s approvals that the project proceed with eminent domain and construction, by the time this legal victory was secured, FERC had already ensured the project was fully constructed and in service.  Had FERC honored the rights of the states, it is likely that the legal victory, and the obligation to comply with federal law prior to final decisionmaking, would have had an affect on the outcome of whether, how, when, and/or where this pipeline was constructed.

PennEast Pipeline Project (FERC Docket No. CP15-558):

FERC issued a Certificate of Public Convenience and Necessity for the PennEast Pipeline Project on January 19, 2018, before a CWA 401 Certification has been issued or denied by the state of New Jersey, before Pennsylvania has issued Chapter 105 Water Obstruction and Encroachment or Chapter 102 Erosion & Sediment Control permits that are a necessary condition for the legal viability of the PA 401 Certification, before the Delaware River Basin Commission has issued a docket for the project, and before section 404 permits have been issued. Immediately following FERC’s certificate approval, PennEast filed nearly 200 eminent domain cases in PA and NJ, and has been granted access to survey in both states. The state of New Jersey has appealed all eminent domain decisions that impact preserved state lands, which is close to 100 properties, and the U.S. Court of Appeals for the Third Circuit has issued a stay on construction for those properties until the case is resolved.  Private eminent domain challenges are still outstanding.  The PennEast project is a major greenfields project currently under consideration by multiple regulatory agencies, Congressional action immediately on the issue of state’s rights could have huge repercussions for the outcome of this project.

Constitution Pipeline (FERC Docket CP13-499):

On December 2, 2014, FERC granted a Certificate to the Constitution Pipeline despite the fact that New York State had not issued a CWA 401 Certification. Thereafter, FERC granted the company the power of eminent domain, a power that the company began to exercise that same month, with the filing of 125 complaints in condemnation against NY and PA landowners. FERC then expressly permitted the Constitution Pipeline to begin elements of construction. For example, on January 8, 2016, the Constitution pipeline submitted a request to proceed which was quickly granted by FERC. (Attch 4)

Amongst other actions, FERC authorized the Constitution Pipeline company to seize and cut eighty percent of the trees in a forest in New Milford Township, Pennsylvania. On March 1, 2016, the Constitution Pipeline company began to cut the forest that has belonged to the Holleran family since the 1950s -- they live on the property, enjoy its natural beauty, and operated a growing maple syrup business that was irreparably harmed by the pipeline company’s FERC approved tree cutting and other actions. (North Harford Maple).

On April 22, 2016, New York denied CWA 401 Certification for the pipeline, and as a result, the project is permanently stalled. (Attch 5) Without CWA 401 Certification from New York State, the project cannot be built and the devastation inflicted on the Hollerans and other Pennsylvania environments, communities, and homeowners was for naught. The associated exercise of eminent domain on New York residents could also have been avoided.  Even if New York approval were to be granted at some future time, the Hollerans and other Pennsylvanians had to prematurely suffer the environmental, economic and personal loss inflicted.

Despite New York’s denials of Constitution’s January 14 and February 25, 2016 requests to clear cut and start earth moving activities, and despite Constitution’s lack of a New York CWA Section 401 Certification, the company started illegally clearing trees in New York. (Attch 6) Constitution went ahead with these activities in 2015 and 2016 in multiple towns and counties in New York, and when concerned residents and the New York Attorney General’s Office made FERC aware of these activities, FERC did little to stop Constitution’s illegal acts, resulting in the permanent loss of vast amounts of trees and devastating impacts to water quality. (Attch 6, 11)

The Constitution Pipeline Company challenged NY’s CWA 401 Certification denial, but lost the case in the Second Circuit in 2017. The company’s petition to appeal the decision was then rejected by the Supreme Court in May of 2018. Despite this clear confirmation of the state’s power, FERC asked the court to remand the Constitution case to the agency so it could reconsider its decision to uphold the State denial of 401 Certification – it seems clear that FERC is seeking another bite at the apple and a new opportunity to consider stripping NY of its CWA legal authority and rights by waiving the state’s denial of CWA 401 to the Constitution Pipeline.  This action came after a separate unrelated case in the hydro-electric context yielded a court determination that when applications are withdrawn and then resubmitted the one year clock for state decisionmaking does not necessarily restart.  In reaction to that unrelated case, FERC requested that the U.S. Court of Appeals for the D.C. Circuit to remand the case to FERC in order to allow it to reconsider whether NY waived its right to approve or deny the CWA 401 certification because the determination came within a year after an application re-submission rather than the original, flawed and deficient submission which was twice withdrawn and re-submitted by the applicant because of the many state-identified failings.

Valley Lateral Project, Millennium Pipeline Company (FERC Docket CP16-17):

In a recent and aggressive stripping of states’ rights, FERC rejected New York’s denial of a CWA 401 Certification for Millennium’s Valley Lateral Pipeline project.  Rather than honor New York’s decision to deny the CWA 401 Certification, FERC rendered a determination that the state had waived its authority and therefore the denial was null and void.

FERC stripped the state of its legal rights by asserting that the applicable one year time period provided for CWA 401 decisionmaking began when Millennium first submitted its application to the state, rejecting the state’s reasonable legal position that the clock only began ticking when the state issued a determination that the application was complete and complied with the state mandates regarding application information. (Attch 12)

At each stage of the legal battle between state and federal powers that ensued, FERC aggressively sought to subvert the states’ rights—by unilaterally determining that NY, despite its ongoing vigilance with regards to the project, had waived its 401 Certification authority (Attch 13)—and to ensure its desired outcome, regardless of the legal outcome—by tolling the state’s request for rehearing while pushing ahead with construction. FERC quickly granted the pipeline company authorization to begin construction before the state had the opportunity to make its case in court—thereby ensuring that even if the state was victorious in its legal position before the court, the decision would come too late to stop the pipeline’s construction.

During the public comment period related to the 401 Certification proposal, NYSDEC received over 6,000 responses which informed the state’s ultimate decision.  FERC’s efforts to undermine the state’s rejection of 401 Certification has the very real and practical effect of also undermining the right of community’s to comment and be heard in the 401 Certification process.  FERC’s waiver of New York’s Section 401 authority not only undermines the State’s rights, but it has also taken from the people of New York their voice in this process.

Additionally, NY has chosen to ban shale gas fracking within the state and, as the NY Attorney General later commented, FERC “fails to appropriately consider state policies, such as state choices regarding our energy resource portfolios” (Attch 18) when approving pipelines.

Ultimately, on March 12, 2018, the Second Circuit determined that the clock on the CWA 401 review process begins when a state receives an application, regardless of its completeness, and that NY did, inadvertently, waive its CWA authority in this case. However, while this unchartered territory in CWA implementation was pending before the court, FERC, through its actions, made clear that it was siding with the pipeline company in seeking to undermine the rights of states to receive complete and accurate information so that it could engage in full and fair decisionmaking regarding CWA 401 Certification.  And FERC, through its actions, also made clear that it intended to do everything within its power to allow Millennium to usurp New York State’s right and responsibility to protect water quality, and to proceed with construction as quickly as possible so that even if the state was victorious in the courts, it wouldn’t matter as the project would already be fully or significantly constructed.  

In the end, with FERC leading the charge, the State of NY lost its legal ability to protect the natural resources, water quality standards, and residents of its state.  This case helps to demonstrate why Congressional reforms that restore, honor and protect states’ rights pursuant to Section 401 of the CWA are so essential.

Connecticut Expansion Project (FERC Docket No. CP14-529): On March 11, 2016, FERC issued a Certificate to the Tennessee Gas Pipeline company for the Connecticut Expansion Project before the state of Massachusetts issued or waived its CWA 401 Certification. (Attch 8)

Leidy Southeast project (FERC Docket No. 16-416):

On December 18, 2014, FERC issued a Certificate to Transco Pipeline Company for its Leidy Southeast project before the state of Pennsylvania issued or waived CWA 401 Certification. (Attch 10)

Atlantic Coast Pipelines (FERC Docket No. CP15-554):

FERC issued a certificate of public convenience and necessity for the Atlantic Coast Pipeline (ACP) on October 13, 2017 before CWA 401 Certifications were issued or waived by Virginia, North Carolina, or West Virginia; and before an Army Corps section 404 permit had been issued. The company has begun to take private properties through eminent domain and FERC has continued to issue partial notices to proceed with tree felling for separate segments of the project without having received or maintained all approvals.

Mountain Valley Pipeline (FERC Docket No. CP16-13):

On October 13, 2017, the Commission issued an order authorizing Mountain Valley Pipeline, LLC to construct and operate its proposed Mountain Valley Pipeline project (MVP) in West Virginia and Virginia without CWA 401 Certification approval in either state. West Virginia Department of Environmental Protection (WVDEP) had previously approved a 401 Certification for the Project on March 23, 2017, but on September 13, 2017, WVDEP filed a motion to vacate their previous approval, stating that “the information used to issue the Section 401 Certification needs to be further evaluated and possibly enhanced.” The MVP had also not yet obtained an Army Corps section 404 permit. Just two weeks after the FERC Certificate Order issued, and prior to receiving state 401 certifications, MVP initiated condemnation actions in three federal district courts against nearly 300 property owners. (8) While Virginia did grant a CWA 401 certification in December 2017, the Virginia DEQ and Attorney General filed a lawsuit against MVP in December 2018, after documenting more than 300 violations between June 2018 and November 2018 – a demonstration that even when there has been final state action pipeline companies can inflict significant environmental harm, making it all the more important for FERC to respect the CWA authority of states prior to FERC action.

(1)    City of Tacoma v. FERC, 460 F.3d 53, 68 (D.C. Cir. 2006).
(2)    PUD No. 1 of Jefferson Cnty. v. Wash. Dept. of Ecology, 511 U.S. 700, 707 (1994) (emphasis added).
(3)    New York State Department of Environmental Conservation’s Notice of Complete Application and Notice of Legislative Public Hearings, January 25, 2017, retrieved from: https://www.dec.ny.gov/enb/20170125_not9.html
(4)    FERC Order Granting Abandonment and Issuing Certificates, Northern Access 2016 Project, (FERC Docket No. CP15-115), August 3, 2018.
(5)    See National Fuel Gas Supply Corporation v. N.Y. State Department of Environmental Conservation,
No. 17-1164-cv (2d Cir. 2019).
(6)    FERC Order Denying Rehearing, Northern Access 2016 Project, FERC Docket No. CP15-115, April 2, 2019
(7)    As reported by Keith Goldberg, FERC Won’t Reconsider NY Pipeline Authority Ruling, Law360, April 3, 2019, retrieved from: https://www.law360.com/articles/1146011/ferc-won-t-reconsider-ny-pipeline-authority-ruling?copied=1
(8)    See Mountain Valley Pipeline v. An Easement to Construct, Operate and Maintain An Easement, Case No. 7:17-cv-00492 (W.D. Va. 2017),  Mountain Valley Pipeline, LLC, v. Simmons, — F. Supp. 3d —, No. 1:17CV211, 2018 WL 701297 (N.D.W. Va. 2018) and MVP v. Mc Million et. al, CA 2:17-04214 (S.D. W. Va. 2017).

 

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