When the state of New York banned fracking in 2015 after years of steady pressure from grassroots activists and environmental groups, it became the first state with natural gas reserves to prohibit the controversial extraction method. In the nearly three years since the historic decision, New York has used that momentum to beat back what Kimberly Ong, a staff attorney at NRDC, refers to as “a fossil fuel invasion” in the form of oil barges, crude oil trains, and pipelines that carry fracked gas across state lines.
What’s unique about the recent fracking fights is New York’s use of a powerful—and previously untapped—legal strategy to stop the harmful projects. Each new proposal for a pipeline is reviewed by the Federal Energy Regulatory Committee (FERC), which has the power to approve or deny it. A key section of the Clean Water Act, however, gives states the authority to block pipeline construction if companies fail to show that their projects comply with state water quality standards. In the past two years, New York’s Department of Environmental Conservation (DEC) has used this Clean Water Act requirement, known as Section 401, to deny permits to two natural gas pipelines already approved by the federal government—the Constitution and Northern Access—and came close to halting a third.
The Constitution Pipeline would have run for 121 miles from the Marcellus Shale fields in northeastern Pennsylvania to Schoharie County, New York, obliterating 500 acres of forest and endangering 250 waterways in its path. The pipeline company sued when New York State invoked Section 401 to block the project, but a federal appeals court upheld the New York decision in 2017, reaffirming the power of states to stop the construction of dangerous fracked-gas pipelines within their borders.
“Until now, states have almost pro forma granted Section 401 water quality certification to natural gas pipelines across the country,” Ong says. “But as the harms of these pipelines become more apparent, states are taking a harder look.”
FERC declined to get involved in the legal battle over the Constitution pipeline and declined again the following year when New York successfully blocked Northern Access, a 99-mile pipeline that would have carried fracked gas across the state from Pennsylvania to Canada. The pipeline would have jeopardized hundreds of bodies of water, including an aquifer that’s the sole source of drinking water for 20,000 residents.
“Consistency is key,” says Wes Gillingham, cofounder and associate director of Catskill Mountainkeeper, an environmental advocacy group dedicated to protecting New York’s Catskill region and a key organizer against the proliferation of fossil fuel projects in the state. “By denying one, it set the precedent for denying others.”
But things changed when Donald Trump was elected, says Ong. “FERC grew emboldened to push its authority beyond traditional bounds and began attempting to invalidate New York State’s water quality decisions.”
In late 2017, New York denied water quality certification to yet another proposed fracked-gas pipeline, the Valley Lateral, which would run for 7.9 miles to connect the existing Millennium pipeline to the controversial 650-megawatt gas-powered Competitive Power Ventures Valley Energy Center in Orange County, New York. In addition to water quality concerns, the DEC highlighted FERC’s failure to consider potential climate-change impacts in its approval of the Valley Lateral project.
This time, however, Trump-appointed FERC Commissioner Neil Chatterjee overruled New York’s rejection of the pipeline in September, claiming the DEC had taken too long to deny the water certification and had therefore waived its right to do so. On March 12, 2018, a U.S. court of appeals sided with FERC.
The federal government’s unusual intervention in the case is a new low for the pro-pipeline FERC, says Ong. But the door remains open for states to block fossil fuel infrastructure within their borders.
In New York, the fight against a fossil fuel invasion has wide implications, since the state serves as a gatekeeper for natural gas pipelines throughout the Northeast. For a company to transport fracked gas from its source in Pennsylvania to New England, for instance, its pipeline must cross through New York, so blocking pipelines there effectively stops pipeline construction in New England.
Even so, fracking infrastructure continues to expand at a rate far in excess of demand. According to a 2017 NRDC-commissioned report, the capacity of FERC-approved pipelines was more than double the country’s natural gas consumption in 2016. Indeed, since 1999 the agency has denied only two of the approximately 400 pipeline applications it has reviewed.
Despite New York’s innovative use of Section 401, NRDC policy advocate Rob Friedman points out that the state remains dependent on fracked gas supplied by Pennsylvania. Still, he says, referring to Governor Andrew Cuomo, “the degree to which the Cuomo administration is now talking about the dangers of fossil fuels, it gives me a lot of hope. Banning fracking in the state was a huge and historic step. The Cuomo administration and officials across the state can continue to drive that point home by standing up against future pipelines and other infrastructure projects—all of which continue to put New Yorkers at risk.”
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