Constitution Pipeline Co. v. N.Y.S. Dep't of Envtl. Conservation
| Decision Date | 18 August 2017 |
| Docket Number | Docket No. 16-1568,August Term, 2016 |
| Citation | 868 F.3d 87 |
| Parties | CONSTITUTION PIPELINE COMPANY, LLC, Petitioner, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; Basil Seggos, Acting Commissioner, New York State Department of Environmental Conservation; John Ferguson, Chief Permit Administrator, New York State Department of Environmental Conservation, Respondents, Stop the Pipeline, Catskill Mountainkeeper, Inc., Sierra Club, Riverkeeper, Inc., Intervenors. |
| Court | U.S. Court of Appeals — Second Circuit |
JOHN F. STOVIAK, Philadelphia, Pennsylvania (Saul Ewing, Philadelphia, Pennsylvania, Elizabeth Utz Witmer, Saul Ewing, Wayne, Pennsylvania; Yvonne E. Hennessey, Barclay Damon, Albany, New York, on the brief), for Petitioner.
BRIAN LUSIGNAN, Assistant Attorney General, Albany, New York (Eric T. Schneiderman, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Andrew B. Ayers, Senior Assistant Solicitor General, Frederick A. Brodie, Assistant Solicitor General, Lisa M. Burianek, Deputy Bureau Chief, Albany, New York, on the brief), for Respondents.
KARA E. PAULSEN** , White Plains, New York (Karl S. Coplan, Todd D. Ommen, Anne Marie Garti, Pace Environmental Litigation Clinic, Inc., White Plains, New York, on the brief), for Intervenor Stop the Pipeline.
MONEEN NASMITH, New York, New York (Deborah Goldberg, Christine Ernst, Earthjustice, New York, New York, on the brief), for Intervenors Catskill Mountainkeeper, Inc., Sierra Club, and Riverkeeper, Inc.
SIDLEY AUSTIN, Washington, D.C. (Roger R. Martella, Jr., Ryan C. Morris, Tobias S. Loss-Eaton, Washington, D.C.; Linda E. Kelly, Quentin Riegel, Leland P. Frost, Manufacturers' Center For Legal Action, Washington, D.C.; Steven P. Lehotsky, Sheldon B. Gilbert, U.S. Chamber Litigation Center, Washington, D.C.; Kevin B. Belford, Michael L. Murray, Washington, D.C.; Leslie A. Hulse, Washington, D.C.; Dena E. Wiggins, Washington, D.C.; Andrea J. Chambers, Katie Leesman, Ballard Spahr, Washington, D.C., of counsel), filed a brief for Amici Curiae National Association of Manufacturers, Chamber of Commerce of the United States of America, Interstate Natural Gas Association of America, American Gas Association, American Petroleum Institute, American Chemistry Council, Natural Gas Supply Association, American Forest & Paper Association, and Process Gas Consumers Group, in support of Petitioner.
Kimberly Ong, New York, New York (Albert K. Butzel, New York, New York, of counsel), filed a brief for Amici Curiae Natural Resources Defense Council, Water Defense, Waterkeeper Alliance, Earthworks, PennEnvironment, Peconic Baykeeper, and Chesapeake Bay Foundation, in support of Respondents.
Before: KEARSE, WESLEY, and DRONEY, Circuit Judges.
Petitioner Constitution Pipeline Company, LLC ("Constitution"), petitions pursuant to 15 U.S.C. § 717r(d)(1) for review of an April 22, 2016 decision of the New York State Department of Environmental Conservation ("NYSDEC" or the "Department") denying Constitution's application for certification pursuant to § 401 of the Federal Water Pollution Control Act, more commonly known as the Clean Water Act (or "CWA"), 33 U.S.C. § 1341 ("§ 401 certification"), that Constitution's proposed interstate natural gas pipeline would comply with New York State (or "State") water quality standards (or "WQS"). NYSDEC denied the application on the ground that Constitution had not provided sufficient information. In its petition, Constitution contends principally (1) that NYSDEC exceeded the § 401(a) time limitations for the State's review of the application and that NYSDEC must therefore be ordered to notify the United States Army Corps of Engineers ("USACE" or "Army Corps of Engineers" or "Army Corps") that the State has waived its right to act upon Constitution's § 401 certification application, thereby allowing USACE to issue a permit to petitioner under § 404 of the Clean Water Act, see 33 U.S.C. § 1344(a) ; and (2) alternatively, that Constitution submitted sufficient information and that NYSDEC's decision should be vacated on the ground that its denial of the application was arbitrary, capricious, and ultra vires, and that NYSDEC should be ordered to grant the requested § 401 certification. To the extent that Constitution challenges the timeliness of the NYSDEC decision, we dismiss the petition for lack of jurisdiction. As to the merits, we conclude that NYSDEC's actions were within its statutory authority and that its decision was not arbitrary or capricious, and we deny the petition.
Constitution proposes to construct a 121-mile interstate natural gas pipeline in Pennsylvania and New York, approximately 98 miles of which would be in New York. In connection with this project (the "Project"), Constitution applied for, to the extent pertinent here, a "certificate of public convenience and necessity" from the Federal Energy Regulatory Commission ("FERC"), 15 U.S.C. § 717f(c), a CWA § 401 water quality certification (or "WQC") from New York State that the Project would comply with State water quality standards (see 6 N.Y.C.R.R. parts 701 to 704), and a CWA § 404 permit from the Army Corps of Engineers to allow discharges into United States navigable waters.
In September 2012, FERC announced that it would prepare an environmental impact statement ("EIS") for Constitution's Project and asked Constitution to submit a feasibility study explaining how it would install the pipeline across waterbodies (generally using that term to refer to streams but not wetlands). For such installations, there is a trenched method—a dry open-cut crossing—which involves diverting a stream, digging a trench through the banks and stream bed, installing and burying the pipeline, and then allowing the stream to resume flowing in the stream bed. (See , e.g. , FERC Final Environmental Impact Statement ("FEIS") pages 2-21 to 2-22.) There are also trenchless crossing methods—including Horizontal Directional Drill (or "HDD"), Direct Pipe (or "DP"), and conventional bore—which involve digging pits on either side of a waterbody and boring or drilling underneath the stream. FERC asked Constitution to provide information with regard to trenchless construction methods for crossing several categories of streams, including those classified by the states as sensitive or high quality and those greater than 30 feet wide where a dry construction method would not be feasible.
Constitution submitted to FERC a study discussing trenchless crossing methods.
(See Constitution, Feasibility Study: Trenchless Construction Methods for Sensitive Environmental Resource Crossings (Nov. 2013) ("Constitution 2013 Feasibility Study" or "Study") pages 1-3 to 1-5.) Trenchless methods do not disturb soil or organisms in the stream banks, stream bed, or in the stream itself, but require disturbing surrounding areas to clear space for installation pits; there are also risks of mid-project drill breakage, with leakage of drill fluid into the waterbody. (See Constitution 2013 Feasibility Study page 2-3; FEIS page 2-24.) Use of the trenched method does not require as much installation space or present the risk of drill failure; but it requires stream diversion and digging into the stream bed and banks. (See , e.g. , FEIS pages 2-21 to 2-22.)
The Constitution feasibility study dealt principally with locations where the waterbody was designated by New York or Pennsylvania as sensitive or high quality. (See Constitution 2013 Feasibility Study pages 2-2 to 2-3.) As a result, Constitution eliminated from consideration for trenchless crossings all but 89 of the 251 New York waterbodies that would be crossed by the pipeline or affected by pipeline construction.
The remaining 89 locations were addressed in three phases. The Study's "Phase I[ ] Desktop Analysis" (id . pt. 1.0 page 1-1) further reduced the number of New York waterbodies considered by Constitution for trenchless crossings from 89 to 26, in part by eliminating streams less than 30 feet wide, even if they were classified by New York as sensitive or high-quality (see id . pages 2-1, 2-3). Constitution stated that trenchless crossings for such narrower waterbodies would potentially require workspace requirements significantly greater than those generally needed for a conventional dry crossing method. (See id . page 2-3.) Thus, unless such a waterbody was immediately associated with a larger wetland and/or waterway complex crossed by the Project or was located in the immediate vicinity of a proposed rail or roadway crossing, "Constitution did not evaluate waterbody crossings less than 30 feet in width" (id .).
Phase II was a "Cost/Time/Construction Workspace Impact Analysis." (Id . page 3-1; see also id . pt. 1.0 page 1-1 ().) This phase eliminated waterways from trenchless-crossing consideration largely on the basis of expense; as a result, there remained only 13 waterbody crossings in New York for which Constitution planned to investigate a "formal trenchless construction design." The Study stated that Phase III, a "geotechnical field analysis" of each of the 13 locations, was in progress. (Id . page 5-1.) Constitution thus planned to use the trenched method for 238 of the 251 New York waterbodies to be crossed.
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