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N.Y. State Dep't of Envtl. Conservation v. FERC

United States Court of Appeals for the Second Circuit

January 24, 2018, Argued; March 12, 2018, Decided

No. 17-3770-ag

Opinion

 [*452]  JOSÉ A. CABRANES, Circuit Judge:

The 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 [**3]  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.

The 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.

We 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. [**4]  Accordingly, we DENY the petition for review.

BACKGROUND

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884 F.3d 450 *; 2018 U.S. App. LEXIS 6033 **; 85 ERC (BNA) 2703; 2018 WL 1247016

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Petitioner, SARAH E. BURNS, AMANDA KING, MELODY BRUNN, BRUNN LIVING TRUST, PRAMILLA MALICK, CHAIR OF PROTECT ORANGE COUNTY, PROTECT ORANGE COUNTY, (POC), AN ASSOCIATION, Intervenors, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, MILLENNIUM PIPELINE COMPANY, L.L.C. and CPV VALLEY, L.L.C., Intervenors.

Prior History:  [**1] Petition for Review from the Federal Energy Regulatory Commission. Nos. CP16-17-000, CP16-17-003.

Petitioner 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.

We DENY the petition for review.

Millennium Pipeline Co., L.L.C., 161 F.E.R.C. P61186, 2017 FERC LEXIS 1553 (F.E.R.C., Nov. 15, 2017)Millennium Pipeline Co., L.L.C., 160 F.E.R.C. P61065, 2017 FERC LEXIS 1120 (F.E.R.C., Sept. 15, 2017)

CORE TERMS

pipeline, certification, Clean Water Act, water quality, Intervenors, natural gas, waived, environmental, interstate, deference, one year, incomplete, state agency, notice, orders

Business & Corporate Compliance, Energy & Utilities Law, Natural Gas Industry, Natural Gas Act, Energy & Utilities Law, Pipelines & Transportation, Certification & Licenses, Environmental Law, Water Quality, Clean Water Act, Administrative Law, Judicial Review, Standards of Review, De Novo Standard of Review, Regulators, US Federal Energy Regulatory Commission, Civil Actions, Deference to Agency Statutory Interpretation, Civil Procedure, Judicial Officers, Judges, Discretionary Powers, Parties, Intervention, Authorities & Powers, Natural Gas Transportation