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The Competitive Power Ventures power plant under consturction in Wawayanda may burn oil rather than natural gas when it opens next year, because delays in the construction of a natural gas line.  - TImes Herald-Reord file photo 

A federal court has dismissed a lawsuit brought by Millennium Pipeline Company against the state Department of Environmental Conservation, bringing into question whether the $900 million CPV power plant being built in Wawayanda will have a natural gas supply by its anticipated February 2018 operation date.

Late last year, Millennium sued the DEC and its commissioner, Basil Seggos, claiming they improperly delayed issuing a Clean Water Act water quality permit for the $57.3 million natural gas pipeline. The 7.8-mile pipe is meant to serve Competitive Power Ventures’ 650-megawatt, natural gas-fired energy plant, the Valley Energy Center. The plant is under construction on Route 6.

The U.S. Court of Appeals for the District of Columbia Circuit, in a decision issued Friday, found that Millennium lacked standing to bring the suit because it has suffered no injury as a result of the DEC’s inaction.

The opinion written by Judge Sri Srinivasan said the law dictates that if a state fails to act within one year to make a decision on Clean Water Act certification, it waives its rights. The company can then go to the U.S. Federal Energy Regulatory Commission for permission to begin construction.

Even if the DEC has unlawfully delayed Millennium’s application, Srinivasan said, its inaction would constitute a waiver, enabling Millennium to proceed to FERC, and therefore causing Millennium no injury.

“So what can Millennium do in the face of the department’s continued inaction? Millennium can go directly to FERC and present evidence of the department’s waiver,” Srinivasan wrote. “To be sure, FERC could ultimately decline to find waiver. But in that event, FERC — not the department — would be blocking the construction.”

Millennium spokeswoman Michelle Hook said the court made clear that FERC has the power to make a decision. She said Millennium is continuing to work with the DEC to get its water quality permit but is also looking for the best way to present its case to FERC by July.

“With the court’s directive that FERC has the authority to determine the waiver issue, we are pleased to have a clear path toward resolving this issue, and we remain confident that the project will continue to move forward,” Hook said.

The DEC has said in the past that it twice issued notices to Millennium saying its application was incomplete, on Dec. 7, 2015, and June 17, 2016. The DEC claims that because it hasn’t received a complete application, it has “at a minimum” until Aug. 30, 2017, to act on Millennium’s application. 

The DEC did not provide comment in time for this story.

Millennium can only clear trees along the pipeline right-of-way between Nov. 15 and March 31, in order to avoid disturbing the endangered Indiana bat.

CPV’s $900 million Valley Energy Center has been scheduled to begin operation in February 2018. It would generate enough power to supply 600,000 homes, according to CPV. While the plant can use fuel oil for backup and reliability purposes, it cannot operate for more than 30 days per year on oil due to air permit restrictions.

Tom Rumsey, vice president of external affairs with CPV, said in an email that the company remains committed to beginning commercial operation in the first quarter of 2018 and saw the court opinion as a “positive step forward.”

“We intend and are prepared to commission and operate on oil until the gas lateral is complete,” Rumsey said. “Due to regulatory and environmental considerations, we anticipate gas availability in the 2nd quarter of 2018.”

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