New York State Department of Environmental Conservation, Petitioner,
Federal Energy Regulatory Commission, Respondent, Sarah E. Burns, Amanda King, Melody Brunn, Brunn Living Trust, Pramilla Malick, Chair of Protect Orange County, Protect Orange County, (POC), an association, Intervenors, Millennium Pipeline Company, L.L.C. and CPV Valley, L.L.C., Intervenors.
Argued: January 24, 2018
for Review from the Federal Energy Regulatory Commission.
Nos. CP16-17-000, CP16-17-003.
New York State Department of Environmental Conservation
requests that we vacate two orders of the Federal Energy
Regulatory Commission. Together, these orders authorized
Intervenor-Respondent Millennium Pipeline Company, L.L.C. to
construct a natural gas pipeline in Orange County, New York,
and determined that the Department had waived its authority
to provide a water quality certification for the pipeline
project under Section 401 of the Clean Water Act.
DENY the petition for review.
Frederick A. Brodie, Assistant Solicitor General (Barbara D.
Underwood, Solicitor General; Andrew D. Bing, Deputy
Solicitor General Lisa M. Burianek, Deputy Bureau Chief; and
Brian Lusignan, Assistant Attorney General, on the brief),
for Eric T. Schneiderman, Attorney General, State of New
York, Albany, NY, for Petitioner.
H. Solomon, Solicitor (James P. Danly, General Counsel; Holly
E. Cafer, Senior Attorney; and Ross Fulton, Attorney, on the
brief), Federal Energy Regulatory Commission, Washington, DC,
Carolyn Elefant (Sarah A. Burns, New York University School
of Law, New York NY; and David Wallace, David Wallace Law
Offices, Montague, NJ, on the brief), Law Offices of
Carolyn Elefant, PLLC, Washington, DC, for
Intervenors Sarah E. Burns, Amanda King, Melody Brunn,
Brunn Living Trust, Pramilla Malick, Chair of Protect Orange
County, Protect Orange County, (POC) an association.
Catherine E. Stetson (Sean Marotta, Hogan Lovells U.S. LLP,
Washington, DC; and Paul Korman, Michael R. Pincus, and A.
Gregory Junge, Van Ness Feldman LLP, on the brief), Hogan
Lovells U.S. LLP, Washington, DC, for Intervenors Millennium
Pipeline Company, L.L.C.
Elizabeth W. Whittle, Nixon Peabody LLP, Washington, DC, for
Intervenors CPV Valley, L.L.C.
Before: Cabranes, Livingston, and Carney, Circuit Judges.
JOSÉ A. CABRANES, Circuit Judge:
questions presented are: (1) whether the Federal Energy
Regulatory Commission ("FERC") correctly determined
that petitioner New York State Department of Environmental
Conservation ("the Department") waived its
authority to review the request of Intervenor Millennium
Pipeline Company, L.L.C. ("Millennium") for a water
quality certification under Section 401 of the Clean Water
Act by failing to act on that request within one year; and
(2) whether FERC has jurisdiction to regulate the pipeline at
issue, and, if so, whether FERC appropriately accepted and
reviewed the application pursuant to its exclusive
jurisdiction over interstate natural gas transportation under
the Natural Gas Act.
Department challenges two FERC orders. These orders
effectively authorized Millennium to construct a natural gas
pipeline to serve a power plant run by Intervenor CPV Valley,
L.L.C. ("CPV") absent the water quality
certification otherwise required to be procured from the
Department under Section 401 of the Clean Water Act, 33
U.S.C. § 1341. In the orders under review, FERC
determined that the Department waived its certification
authority for the pipeline by failing to respond within one
year of receiving Millennium's request for water quality
certification, as required by statute. Additionally, the
Protect Orange County Intervenors ("the Landover
Intervenors") challenge FERC's jurisdiction over the
pipeline at issue.
conclude that the Department waived its authority to review
Millennium's request for a water quality certification
under the Clean Water Act by failing to act on that request
within one year. We also conclude that FERC does have
jurisdiction over the pipeline. Accordingly, we DENY the
petition for review.
Valley Energy Center, owned by CPV, is an electric power
generation facility under construction in the Town of
Wawayanda, in Orange County, New York. CPV contracted
with Millennium to build the pipeline as a means of
connecting the plant to Millennium's existing interstate
natural gas pipeline, which runs through Orange
November 13, 2015, Millennium filed an application with FERC,
pursuant to section 7(c) of the Natural Gas Act, 15 U.S.C.
§ 717f(c), requesting certificate authorization to
construct and operate 7.8 miles of sixteen-inch-diameter
lateral pipeline and related facilities. The Natural Gas
Act requires applicants to obtain "any permits, special
use authorizations, certifications, opinions, or other
approvals as may be required under Federal
law." Since the pipeline would cross several
streams of water in southern New York, Millennium was also
required to apply to New York's Department for a water
quality certification under the Clean Water Act to confirm
that the proposed pipeline project ("Project")
would comply with the Act, state water quality standards, and
other requirements of state law.
401 of the Clean Water Act provides that "[i]f the State
. . . fails or refuses to act on a request for certification,
within a reasonable period of time (which shall not exceed
one year) after receipt of such request, the certification
requirements . . . shall be waived with respect to such
forms dated November 18, 2015, Millennium submitted an
application for a water quality certification to the
Department. The Department received the application on
November 23, 2015. On December 7, 2015, the Department
notified Millennium that it deemed the application
incomplete, pending FERC's environmental
assessment. FERC issued its assessment on May 9,
2016. On June 17, 2016, the Department issued
a second notification that it considered Millennium's
application incomplete, requesting further information
regarding the Project's potential environmental
impact. In August 2016, Millennium submitted
responses conveying additional information to the
November 9, 2016, FERC issued a certificate under section
7(c) of the Natural Gas Act approving the Project
("Certificate Order"). The Certificate Order did
not authorize Millennium to begin construction immediately,
instead listing various conditions that the company would
need to satisfy before starting work. After FERC
issued the Certificate Order, Millennium requested expedited
review of its application for a water quality
certification. In response, the Department acknowledged
that Millennium had fully responded to the second notice of
incomplete application and stated that it would continue its
review. It contended that it had, "at a
minimum, until August 30, 2017, " to either approve or
deny the application.
to begin construction, Millennium petitioned the United
States Court of Appeals for the District of Columbia Circuit
to compel the Department to act on its application for water
quality certification, on the basis that the Department
failed to act on Millennium's application for a water
quality certification within the one-year time limit mandated
by Section 401 of the Clean Water Act. On June 23,
2017, that court dismissed Millennium's petition for lack
of standing, holding that Millennium could seek a remedy for
the delay only from FERC.
on July 21, 2017, Millennium requested that FERC determine
that the Department had waived its authority under the Clean
Water Act, and thus permit Millennium to proceed with
construction. While that request was pending, on
August 30, 2017- nearly two years after Millennium's
initial submission to the Department-the Department denied
Millennium's application. It determined that FERC's
environmental assessment had failed to evaluate the
downstream greenhouse gas emissions from the Project. The
Department therefore considered the environmental assessment
incomplete and rejected the water quality certification
request.Millennium petitioned this Court for
review of the Department's decision.
September 15, 2017, following the Department's decision,
FERC found that the Department's delay constituted a
waiver of the Department's authority under the Clean
Water Act ("Waiver Order"). It held that
under the plain language of Section 401-which states that the
window for review opens upon "receipt of such
request"-the relevant date for assessing waiver is the
day the agency receives an application, in this case,
November 23, 2015.
Department, and, separately, the Landowner Intervenors sought
rehearing of the Waiver Order. FERC denied rehearing on
November 15, 2017 ("Waiver Rehearing
Order"). Two days after FERC's denial of
rehearing, the Department filed this petition for review of
the Waiver Order and the Waiver Rehearing
Order. On appeal, the Landowner Intervenors
claim that FERC lacks jurisdiction under the Natural Gas Act
to regulate the pipeline.
Standard of Review
issues are presented by this proceeding: (1) whether FERC
correctly interpreted Section 401 of the Clean Water Act when
it held that the Department waived its right to act on
Millennium's application; and (2) whether FERC
appropriately accepted and reviewed the ...