In a move that is being widely celebrated by both activists and national environmental rights groups, this afternoon, the US Court of Appeals, Second Circuit in NY issued an emergency stay of the Federal Energy Regulatory Commission’s (FERC) “Notice to Proceed with Construction”, issued on October 27, 2017 to the Millennium Valley Lateral Pipeline. The stay halts construction activities until a hearing can be held by a three judge panel.
The pipeline is intended to serve a controversial fracked gas power plant under construction by Competitive Power Ventures in Orange County NY. The battle between the State of New York and FERC over approval of the pipeline reflects an escalating conflict between impacted communities and environmental activists on the one side, and the powerful gas industry along with FERC, an agency described by opponents as a “rubberstamp” arm of the industry, on the other. Opponents of pipeline projects across the country argue that FERC systematically disregards adverse environmental impacts and see the authority of the state’s as the only means to control what they consider “reckless” approvals.
The stay is the latest legal salvo by NYS in response to repeated attempts by Millennium Pipeline to upend the state’s sole authority under federal law to determine 401 Water Quality Certification. In August, 2017, the NY State Department of Environmental Conservation pursuant to the Federal Clean Water Act, a Section 401 Water Quality Certificate for the construction of the Millennium Valley Lateral Pipeline. The 7.8 mile pipeline would traverse NY wetlands and endangered species habitat in Orange County, NY, while supplying fracked gas from PA to the plant.
Taking their cue from an administration with little regard for the rule of law, on September 15, 2 Trump appointed FERC commissioners overrode NYSDEC’s authority over the water quality permit. FERC’s authority under the Natural Gas Act does not the pre-empt the authority of a state over the Clean Water Act. “It’s like trying to use a U.S. passport to drive a car in NYS”, says Pramilla Malick, of Protect Orange County, the community group leading the opposition. “While FERC may have siting authority, only the state can permit any activity that could impact water quality.”
Last week the agency pushed the envelope further by issuing the notice to proceed with construction of the pipeline despite pending motions by the NYSDEC before the commission. Malick expressed outrage at this action. “FERC routinely violates the fourteenth amendment rights of citizens but this is the first time they’ve ever violated the due process rights of a state.”
In an earlier statement Malick described FERC’s approval as an “Act of war against both the State of New York and the Federal Clean Water Act”. Her group urged Governor Cuomo to fight FERC’s federal overreach.
Malick lauded state leaders today, “We are deeply grateful to Governor Cuomo, State Attorney General Eric Schneiderman, and General Counsel for NYSDEC, Thomas Berkman for courageously fighting for the state’s right to protect its natural resources despite the heavy handed rebuke of the gas lobby.”
Today’s stay was issued with some urgency, as word spread in the local community that Millennium, acting swiftly on FERC’s illegal notice, began marking tree clearing areas that opponents claim would destroy a significant amount of endangered species habitat as well as a mating eagle’s nest. Activists vowed to take any actions necessary to prevent construction from beginning.
Citizens and environmentalists have long been urging Governor Cuomo to take action to shut down CPV, which is situated in Wawayanda, NY, on the edge of NY’s renowned Black Dirt farmland, and near pristine water resources. Opponents of the CPV project assert that this populated and environmentally sensitive location will suffer irreparable harm from the plant’s daily emissions, in a region with declining energy demands.
Upon news of the stay Protect Orange County issued the following statement:
“Now more than ever, as we witness the dire global consequences of climate change; as clean water, air and soil resources are sacrificed to the greed of polluting fossil fuel giants; as our current administration in Washington, DC, continues to deny climate science, rolling back environmental protections, obstructing efforts to move toward clean energy, while winking at the lawlessness of big energy polluters, we need responsive and courageous local leaders to defend our resources with every means that the law allows. Today, our state leaders, led by the Governor, advanced the interests of the citizens of Orange County and New York State by acting decisively on behalf of the people, and not in the interest of corporate polluters.”
Ironically also in yesterday’s news the Senate confirmed the remaining two FERC nominees creating a complete 5 member commission. Environmentalists had hoped the nomination process would included hearings on a long list of abuses by the agency over the rights of impacted communities.