Yesterday's FERC decision in Constitution Pipeline

Yesterday FERC issued an  "Order on Voluntary Remand" denying NYS DEC's motion to stay. This appears to give Constitution Pipeline a Green Light.

Here's my video commentary:

https://www.youtube.com/watch?v=l_6kjeYICtI

This will hopefully clear up some rumors circulating yesterday.

FERC said in yesterday's "Order on Voluntary Remand" they had reversed a 1/11/2018 Declaratory Order. I assumed FERC had overturned their own order. This turned out to be true,

• Some people online were saying FERC had reversed an order of a "Federal District Court" --this was incorrect.

• or that FERC had reversed an order of the 2nd Circuit. -- This is also incorrect.
  
  CP initially appealed the NYSDEC'S denial of the CWA §401 permit to the 2nd Circuit. This was in error, as the DC Circuit is the court of original jurisdiction for challenging a FERC action. 2nd Circuit properly dismissed for lack of jurisdiction of the FERC question, and refused to hear the pendant NY state question.

But yes what REALLY happened is that FERC did reverse their prior 1/11/18 Declaratory Order finding that DEC had not waived their right to object to the 401. 

Here is the NEW Constitution Pipeline Docket:

http://elibrary.ferc.gov/idmws/search/eSave.asp?cnt=200&fd=1/28/2010&td=3/7/2020&cat=submittal,issuance&dkt=CP18-5&ft=fulltext&dsc=description

The most recent entry is yesterday's order:

Issuance 20190828-3090

08/28/2019 08/28/2019

CP18-5-000 CP18-5-001 CP18-5-002

Order on Voluntary Remand re Constitution Pipeline Company, LLC under CP18-5 et al. Availability: Public

Order/Opinion / Commission Order/Opinion

Word     77K  FERC Generated PDF     384K

INFO FILE

For reference, here is the ORIGINAL Constitution Pipeline FERC docket:

http://elibrary.ferc.gov/idmws/search/eSave.asp?cnt=200&fd=1/28/2010&td=3/7/2020&cat=submittal,issuance&dkt=CP13-499&ft=fulltext&dsc=description

Here's something Anne Marie Garti sent out with a timeline of events.

There's a lot of history here.

This all can be confusing unless you follow it closely.

Hope this helps,

BH

From: Anne Marie Garti <annemarie@garti.net>
Date: August 29, 2019 at 8:45:07 AM EDT
To: stop_the_constitution_pipeline@googlegroups.com
Subject: [Unconstitutional Pipeline] CP v FERC update
Reply-To: stop_the_constitution_pipeline@googlegroups.com

I laid out what just happened for the landowners. I thought I'd share this because it may answer some of your questions.
Anne Marie

---

Date: Thu, 29 Aug 2019 08:41:26 -0400

To: ED landowners

From: Anne Marie Garti <annemarie@garti.net>

Subject: CP v FERC update

Good morning,

I'm writing to share some bad news. Late yesterday afternoon FERC issued an order declaring that the NYSDEC waived its right to deny the 401 water quality certification to Constitution because it did not act within one year of the initial application. Its decision is based on another case (Hoopa Valley) that was decided by the DC Circuit early this year. I gave the basic time line of what happened in my last email, which is pasted in below. (Scroll down to read it.)

We briefed the case in the spring, arguing that FERC should not change its position. However, as we all know, FERC wants to approve pipelines, and Hoopa Valley gave it a reason to overturn its prior decisions. That's what it did yesterday. (The order is attached.)

What happens next:

Now we have to request rehearing of this decision. FERC will then issue a tolling order so we can't get into court.

However, we also have our three-year-old challenge against FERC's certificate. The 2nd Circuit will now schedule oral arguments, so that may help us.

Constitution also needs a 404 permit from the US Army Corps of Engineers before it can construct the pipeline. It's possible that the Army Corps will hold off on making a decision until the case is decided by the Supreme Court (see next paragraph), or another court.

Another twist:

On Monday (August 26), Trout Unlimited filed a petition for a writ of certiorari to the US Supreme Court regarding the Hoopa Valley decision. If the Supreme Court takes the case, it could reverse the DC Circuit's decision, undermining FERC's order. All of that takes time, so the goal now is to hold off construction until these other cases are decided. Of course, Constitution has the opposite goal.

Stop the Pipeline (STP) will schedule a meeting in September to discuss all of this.

STP may need to raise money. Over the past seven years you have received legal representation for free. This is a new round, so I hope all of you will contribute to the cause.

Anne Marie

---

Date: Sat, 23 Feb 2019 07:28:00 -0500

To: ED landowners

From: Anne Marie Garti <annemarie@garti.net>

Subject: CP v FERC update

hi everyone,

I wanted to give you an update about Constitution Pipeline Company, LLC v FERC, D.C. Circuit Case No. 18-1251.

I've written up a timeline to remind you of what this is about. I also want you to know that this is the most serious legal threat we've faced.

On 10/11/17, Constitution petitioned FERC for a declaratory order that NYSDEC had waived its right to deny the 401 water quality certification. FERC opened docket number CP18-5 for this petition.

https://elibrary.ferc.gov/idmws/file_list.asp?document_id=14609085

STP and others intervened and filed comments.

On 1/11/18, FERC denied CP's petition.

http://elibrary.FERC.gov/idmws/file_list.asp?accession_num=20180111-3063

On 2/12/18, CP requested rehearing.

http://elibrary.FERC.gov/idmws/file_list.asp?accession_num=20180212-5149

On 7/19/18, FERC denied rehearing

http://elibrary.FERC.gov/idmws/file_list.asp?accession_num=20180719-3022

On 9/14/18, CP filed a petition for review in the DC Circuit

On 10/22/18, FERC moved to put the case in abeyance, pending the outcome of the Hoopa Valley case.

The court granted the motion, and ordered that a "motion to govern" be filed within 30 days of the Hoopa Valley decision.

Hoopa Valley was decided on 1/25/19.

Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019)

FERC filed a motion late yesterday afternoon, asking the court to remand the case so that FERC can issue a new order based on the Hoopa Valley decision. (The motion is attached.)

The D.C. Circuit will issue an order to remand.

Once the order is issued, we have 30 days to file papers about why and how CP is different than Hoopa Valley.

Once everyone files those papers, we have 20 days to file responses to the other side. (Yesterday afternoon FERC said we'd get 30 days, but when FERC filed the papers, it changed it to 20 days.)

Everyone who intervened has the right to file legal papers. Everyone else can comment.

FERC can either distinguish Hoopa Valley, and continue to say that NYSDEC did not waive, or it can decide that DEC waived. The purpose of the remand is for FERC to decide.

I assume the order will be issued next week, but I'm not sure. I'll forward it once it's issued, and then we get 30 days.

Anne Marie

--
William Huston:  WilliamAHuston@gmail.com
Binghamton NY

Public Service Mapping / Videography / Research / Education / Safety Advocacy
Blog -- Facebook -- Twitter  -- Youtube
Document collections: VirtualPipelines -- BHDCSDimockArchive
Please support my work! -- TinyURL.com/DonateToBillHuston