Court of Appeals: NYS Cannot Block Valley Lateral Pipeline

A federal appeals court issued a decision today determining that New York State has waived its right to block the Valley Lateral pipeline. This is a disappointing turn for communities in Orange County, and all New Yorkers who care about water quality and climate change.

In its decision, the Second Circuit Court of Appeals found that New York State took too long in making its decision to deny water quality certification to Valley Lateral pipeline, amounting to a waiver of its right to block the project.

The Valley Lateral pipeline includes the construction of 7.9 miles of new, 16-inch diameter natural gas pipeline that would transport fracked gas to power the 650-megawatt gas-powered CPV Valley Energy Center. The pipeline is proposed to carry fracked gas across 23 wetlands, 9 fisheries, and 4 aquifers that bring drinking water to upstate New York.

Under section 401 of the Clean Water Act, states have one year from the date of the project’s application to decide whether a project like the Valley Lateral pipeline will meet state water quality standards. If the project fails to demonstrate that it will meet these standards, states are empowered to deny water quality certification, essentially blocking the project from being built in the state.

In August 2017, New York State denied water quality certification to the Valley Lateral pipeline, stating that U.S. Federal Energy Regulatory Commission’s (FERC) environmental assessment had failed to evaluate the pipeline’s downstream greenhouse gas emissions, rendering the water quality application incomplete.

Under New York State’s reading of the statute, the state had one year from the date a complete application was filed with the state to decide. FERC argued that the 1-year clock began at the time the pipeline company filed the 401 application, even though it was incomplete at the time of filing. In the end, the Second Circuit ruled in favor of FERC.

The immediate result of this decision is that the Valley Lateral Pipeline will be built, and it will be done without a full study of the pipeline’s greenhouse gas emissions. We are of course very disappointed by this ruling. But NRDC is going to continue to fight harmful fracked gas pipelines in New York State and elsewhere—while this may be a bump in the road, it will not stop our longer term campaign to protect communities, water quality, and the climate from the dangers of fossil fuels.