Court battle looms over N.Y.’s denial of Constitution pipeline

By Mike Lee | 04/27/2016 08:33 AM EDT

A pipeline company has said it will fight New York Gov. Andrew Cuomo’s decision to block a natural gas line that federal regulators already approved across the state, setting up a potential battle about the limits of federal and state authority.

Cuomo’s administration turned down permits under the federal Clean Water Act for the 125-mile Constitution pipeline to cross streams in New York, saying it would damage trout habitat and old-growth forests and that the sponsors had declined to co-locate the line on an existing highway right of way.

The pipeline, being developed by Williams Cos., Cabot Oil & Gas Corp. and two other partners, would carry gas from the Marcellus Shale field in northeastern Pennsylvania across New York and connect with existing pipelines near Wright, N.Y.


The Federal Energy Regulatory Commission approved the line in 2014. Williams and Cabot said in a joint statement that they "will pursue all available options to challenge the legality and appropriateness of New York’s decision."

The companies said the New York State Department of Environmental Conservation based its decision on false information and also on comments that FERC had already considered when it approved the project.

The decision "appears to be driven more by New York State politics than by environmental science," the companies said in a statement.

The project would have provided thousands of jobs, and the Cuomo administration is also overlooking the role of gas in meeting New York’s clean-energy goals, Terry O’Sullivan, president of the Laborers’ International Union of North America, said in a statement.

There’s already a precedent, though, for a state overriding a FERC-approved pipeline, said Anne Marie Garti, an attorney who represents nonprofit group Stop the Pipeline.

In 2008, a federal appeals court upheld Connecticut’s ability to block the Islander East pipeline, which would have connected to New York’s Long Island, because of the project’s potential impact on the Connecticut coast.

That gives New York a strong case, Garti said, since the Islander East case also involved permits under the Clean Water Act. Plus, the Constitution pipeline’s builders missed chances to work with New York regulators.

"What is wrong with the pipeline and why it was rejected was that they’re trying to build a pipeline someplace where they shouldn’t build it," Garti said.

The energy industry has argued for years that the Northeast needs more pipelines to serve the demand for power generation in New England. That’s one of the reasons Congress gave FERC the authority to issue pipeline permits — to prevent local interests from blocking projects that could benefit other regions, said Karen Moreau, executive director of the American Petroleum Institute’s New York operation.

"There’s an interstate commerce issue here," Moreau said in an interview.

Constitution is the third gas pipeline project that has run into headwinds since March, although the reasons have varied. FERC denied a permit for a pipeline leading to Jordan Cove natural gas export terminal on March 11, saying neither the pipeline nor the terminal had enrolled enough customers. Last week, Kinder Morgan Inc. announced it was canceling a widely opposed pipeline across New England because it couldn’t find enough customers (EnergyWire, March 15; EnergyWire, April 21).

That not only disproves the argument that the nation needs more gas lines, said Maya van Rossum of the Delaware Riverkeeper Network, which opposes a lot of pipeline development. It also shows that activists are starting to score points in their campaign to block pipeline development.

"It’s not a one-strategy-fits-all," she said. "We’re really coming down hard on this industry all the way around."

Reporter Hannah Hess contributed.