Gavin Donahue, president of the Independent Power Producers of New York State, said the Sept. 15 decision by the Federal Energy Regulatory Commission in a case involving what would be an 8-mile stretch of the Millennium Pipeline is "a very positive sign" that the Northern Access Project and Constitution Pipeline projects will gain similar approvals from the federal agency.

"What I'm encouraged by is the pace of the response, with FERC seeing what New York state was trying to do and saying, 'Wait a minute. This doesn't pass the smell test," Donahue said.

 

BLOCKED BY DEC

Donahue said the directive from FERC has rekindled industry hopes that similar waivers will be granted to National Fuel Gas Co.'s Northern Access Project, which would slice across parts of Niagara County, as well as the Constitution project that would impact Delaware, Schoharie, Chenango and Broome counties.

Northern Access and Constitution have been blocked by the State Department of Environmental Conservation, an agency under the control of Gov. Andrew Cuomo.

In a statement regarding FERC's decision, DEC officials said they are considering "all legal options to protect public health and the environment."

CLEAN WATER ACT

FERC's action was seen by environmental activists as a departure from its practice of allowing state regulators to evaluate water-quality impacts from pipeline projects.

The federal agency said in its order that state regulators may deny an application if it does not meet Clean Water Act requirements. But in the Millennium project, "New York DEC declined to take that step or to otherwise timely act on Millennium's application."

Anne Marie Garti, an environmental lawyer from Delaware County who has been a leader in an activist group called Stop the Pipeline, said the legal issues surrounding the state's denial of the water permit for Constitution are very different than those enveloping the Millennium project.

Garti, who is also involved in ongoing litigation regarding FERC's approval of the Constitution project, predicted the would-be developers of that pipeline "will lose" because DEC complied with the legal standards outlined by FERC in its decision on Millennium.

But a spokesman for the Constitution project, Christopher Stockton, said the developers are pursuing "all options" to knock out the DEC denial of the permit needed by the transmission system.

He said the company will "seek a similar Clean Water Act Section 401 waiver determination directly from FERC," in line with a federal court ruling cited by FERC in its decision regarding Millennium.

'POSITIVE STEP'

Karen Merkel, a spokeswoman for National Gas, called the FERC ruling "a positive step for the natural-gas industry."

But she added that "our argument with regards to the Northern Access Project is substantially different. We continue to wait for a decision."

 

Under Cuomo's direction, New York has become the only state with shale gas deposits to ban the drilling technique known as horizontal hydraulic fracturing, which is used to tap the subterraneous supplies trapped beneath layers of rock.

FERC's decision to upend the denial from the Cuomo administration was ripped by Maya Van Rossum, director of the Delaware Riverkeeper Network. In an interview, she called the action "wholesale robbery of states’ rights."

"They have been working very hard to undermine states' authority over these pipeline projects," she said of federal regulators. "It's a huge demonstration that Congress needs to hold hearings to investigate what is happening with this out-of-control agency."

National Fuel has signaled that its $500 million Northern Access project would include a 22,214 kilowatt compressor station in the town of Pendleton as well as a new natural gas dehydration station in Wheatfield.

The developers of the proposed $700 million Constitution Pipeline, led by Williams Partners, have suggested a major expansion of an existing compressor station in the Schoharie County town of Wright.

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