New York Denies Water Quality Permit for Another Natural Gas Pipeline

By Devin McDougall

In late April, the New York State Department of Environmental Conservation (“NYSDEC”) denied a Water Quality Certification (“WQC”) under the Clean Water Act to Transcontinental Gas Pipeline Company (“Transco”) for the proposed Northeast Supply Enhancement natural gas pipeline (the “Project”). Among other components, the Project would include a 17.4 mile underwater pipeline with a diameter of 26 inches, which would carry natural gas from New Jersey to the Borough of Queens in New York City. NYSDEC denied the application without prejudice based on incomplete information, finding that Transco had failed to adequately study potentially significant environmental impacts of the Project, including the resuspension of contaminants and harm to shellfish beds and other benthic resources. 

The NYSDEC’s WQC denial for the Project follows their recent WQC denials for other natural gas pipelines. In August 2017, NYSDEC denied a WQC for the 7.8 mile Millennium Valley Lateral pipeline to supply a natural gas plant in Orange County. However, in September 2017, the Federal Energy Regulatory Commission (“FERC”), which has final approval powers for interstate pipelines, ruled that NYSDEC had delayed too long in issuing its denial and had thereby waived its ability to effectively veto the Project. FERC then allowed the pipeline to proceed. NYSDEC is currently appealing FERC’s decision, but in December 2017, the Second Circuit denied a stay pending resolution of that appeal, so construction is in progress.

 In April 2017, NYSDEC denied a WQC for the 99-mile Northern Access pipeline from Pennsylvania across New York to Canada proposed by the National Fuel Gas Supply Corporation (“National Fuel”). NYSDEC found that the proposed pipeline would have significant negative impacts on several streams and wetlands and would fail to meet state water quality standards for those waterbodies. National Fuel has also brought a judicial challenge against DEC’s decision. 

In April 2016, NYSDEC denied a WQC for a 121-mile pipeline between Pennsylvania and New York proposed by Constitution Pipeline Co. (“Constitution”), finding that Constitution had failed to address significant water quality impacts in connection with multiple proposed stream crossings or to study alternative routes. Constitution challenged this decision in federal court, but the Second Circuit ruled in August 2017 that NYSDEC’s WQC denial was lawful because Constitution had repeatedly failed to respond to NYSDEC’s requests for additional impact studies and alternative route proposals. In October 2017, the Second Circuit denied Constitution’s request for a rehearing. In January 2018, FERC denied Constitution’s request to overturn NYSDEC’s WQC denial. In April 2018, the U.S. Supreme Court denied certiorari to review the Second Circuit’s decision upholding the WQC denial.

NYSDEC’s numerous WQC denials for natural gas pipelines have contributed to an ongoing debate over the role for natural gas in New York State’s energy mix, particularly as resources such as wind and solar become more predominant in the State’s policymaking. Top aides for Governor Andrew Cuomo have recently expressed the view that natural gas could serve as a “bridge” to facilitate transition to renewable energy. However, Governor Cuomo, in recent public statements, has expressed his opposition to any new natural gas pipelines in New York.

For more information on pipeline permitting in New York, contact Daniel Riesel or Michael Bogin.