Supreme Court Lets NY Denial of Constitution Pipeline Stand

Groups rally to ask Governor Cuomo to protect NYS water by denying water quality certificate for Constitution Pipeline.

Erik McGregor

In a huge victory, the U.S. Supreme Court denied Constitution Pipeline’s request to appeal a Second Circuit decision upholding New York State’s Clean Water Act certification denial of the pipeline on Monday.  The Supreme Court’s denial of certiorari reaffirms the clear precedent that states have the power to stop dangerous fracked gas pipelines within their borders, even after the federal government has otherwise approved the project. 

The Constitution Pipeline, which is backed by subsidiaries of Williams, Cabot, and other fracking and pipeline companies, was proposed to start in Pennsylvania and run for over 120 miles to New York, disturbing dozens communities and hundreds of waterways. In New York alone, the pipeline would have harmed over 85 trout streams, 85 acres of wetlands and cleared nearly 500 acres of forest.

Under Section 401 of the Clean Water Act, a fracked gas pipeline cannot be built in a state unless that state issues a water quality certification for the pipeline or waives its right to do so.  If a state denies water quality certification to a pipeline, it cannot be built within that state’s borders.  

In 2016, the New York State Department of Environmental Conservation (DEC) denied water quality certification to Constitution Pipeline, blocking the pipeline from being built within the state.  Constitution challenged that decision in the Second Circuit Court of Appeals, but lost that case in 2017. (NRDC, representing a coalition of groups including itself Water Defense, Earthworks, PennEnvironment, Peconic Baykeeper, Waterkeeper Alliance, and the Chesapeake Bay Foundation, filed an amicus brief in that case in support of the state’s decision.)  Early this year, Constitution asked to appeal the Second Circuit decision to the Supreme Court, a request that was denied yesterday.

Now, there is only one avenue left for the pipeline—in 2017, Constitution asked the Federal Energy Regulatory Commission (FERC) to overrule New York State’s denial.  Under the Natural Gas Act, FERC can find that a state has waived its right to deny certification if the state takes longer than one year to rule on the application, rendering the denial void.  FERC rejected Constitution’s request early this year.  Constitution has also asked for a rehearing on this decision, and FERC has yet to rule.  If FERC denies this request for a rehearing, Constitution’s final option is to appeal that decision in federal court.

But Constitution pipeline is quickly running out of ways to get around New York State’s decision, and with this latest denial by the Supreme Court, the pipeline is looking less and less likely.  This is a victory not just for New Yorkers, but for all Americans who care about clean water.

About the Authors

Kimberly Ong

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

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