Judge Blocks Valley Lateral Pipeline and FERC Overreach

Co-written by New York Program Assistant, Jhena Vigrass

A federal judge recently halted construction on the Valley Lateral Pipeline—a temporary reprieve for New Yorkers in the fight against fossil fuel development. Valley Lateral Pipeline, a 7.8-mile natural gas pipeline, would have connected the larger Millennium Pipeline to the controversial CPV Valley Energy Center in Orange County, New York. This decision is the most recent victory amidst unprecedented attempts by the Federal Energy Regulatory Commission (FERC) to override New York State’s decision to deny water quality certification to the pipeline. Unfortunately, the fight against Valley Lateral has just begun.

Map of the Valley Lateral Pipeline

When we last wrote about this project, New York had just denied the water quality certification permit to the Valley Lateral Pipeline on the grounds that intervening D.C. Circuit case law had rendered FERC’s environmental assessment incomplete since it failed to consider the potential greenhouse gas emissions generated from the project.

Since then, Millenium hit back and successfully petitioned FERC to approve the pipeline over New York State’s denial of a water quality certification, which is required by the Clean Water Act. In September 2017, FERC issued a Declaratory Order finding that New York had “waived” its right to deny the permit by taking too long to rule on the pipeline’s application. This finding is not supported by the law—New York acted in a timely manner on the application, acting less than one year after receiving a complete application.  

In October 2017, New York filed a request with FERC for a rehearing of the Declaratory Order, which essentially serves as an appeal of the order. But while New York's request was still pending with FERC, FERC issued a Notice to Proceed with Construction, authorizing Millennium to begin construction of the pipeline over New York’s objections. 

On October 30, New York simultaneously requested that FERC stay their Notice to Proceed and filed an emergency petition with the Second Circuit to stop pipeline construction. The Second Circuit granted a temporary stay pending full consideration of New York’s petition.

Finally, just last week, FERC denied DEC’s request for a rehearing, and DEC challenged this decision in the Second Circuit. 

Greenwood Lake in Orange County, NY

Luke H. Gordon

While this victory is encouraging, there is more work to do. The Second Circuit has not yet decided how long the stay on construction will last—oral argument on this issue will be held in Thurgood Marshall U.S. Courthouse, on Tuesday, December 5, 2017 at 2:00 pm. As usual, the oral argument is open to the public. 

These developments make clear that FERC, with its new Trump-appointed commissioners, continues to find new and unprecedented ways to support the development of fossil fuel infrastructure, even if it means pushing the limits of the law.

What can you do?

Two things:

  • If you’re in the New York area, come to the oral argument on December 5 and show your opposition to the Valley Lateral Pipeline—don’t let FERC usurp New York State’s authority to stop natural gas pipelines, now or ever. 
  • Call Governor Cuomo at 1-518-474-8390, to thank him for standing up against FERC and the Valley Lateral Pipeline, and ask him to commit New York State to a fossil free future.

About the Authors

Kimberly Ong

Senior Attorney, NY Regional, Healthy People & Thriving Communities Program

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