The Fight to Reverse FERC’s Decision

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The Fight to Reverse FERC’s Decision

Background

In the spring of 2012, the Constitution Pipeline Company, which was then a joint venture between Williams and Cabot, pre-filed an application with FERC to build a thirty-inch diameter, 124-mile-long pipeline from North Central Pennsylvania, through the Southern Tier and Northwest Catskills in New York State. It would terminate in Wright, New York, where it would interconnect with the Iroquois and Tennessee Gas Pipelines, which are already full of gas. Iroquois intended to reverse the flow of gas, exporting it to Canada.

At the time, New York State was in the midst of a battle to either regulate or ban high volume hydraulic fracturing (fracking) to extract methane gas. Community activists understood that the pipeline would enable fracking in the area, so they quickly joined with landowners whose land would be taken for the pipeline. After STP’s first meeting was held in late June 2012, the group created a steering committee, and in 2013, the steering committee chose the Jerome Park Conservancy, a tax-exempt nonprofit that was also formed to stop a threat to a community, as STP’s fiscal sponsor.

For the first two-and-a-half years, STP’s efforts were focused on FERC’s regulatory review. Over nine-hundred people attended FERC’s scoping meeting in late October 2012, in Oneonta, New York, an extraordinary number considering the low population density of the area. Over four hundred people intervened when the Constitution Pipeline Company filed its application the following summer, and STP’s members submitted thousands of comments to FERC during its review process. When FERC approved the project on December 2, 2014, the Constitution Pipeline Company had not obtained easement agreements for half the 707 properties along the entire route. The Company filed over one hundred and twenty complaints in condemnation (eminent domain proceedings) by the end of 2014, even though the pipeline was only conditionally approved and could still be stopped.

In 2015, STP shifted its attention to the DEC, which had the power to deny a water quality certification that is required under the Clean Water Act. Understanding the devastating impact the project would have on water quality, STP began an educational campaign and created an extensive website on the regulatory review for the water quality certification.

The project would require the clearing of 1,872 acres of land, including the destruction of approximately 700,000 trees on 1,034 acres of forest. The pipeline would cross 289 bodies of water, most of them cold-water trout streams, and impact over 95 acres of wetlands, of which 34 acres are irreplaceable forested wetlands. Additionally, over 35 miles of the proposed route are located on steep slopes, and 45.5 miles are over shallow bedrock. The proposed route is located in an area that has experienced the devastation of extreme storms, and STP members who live along the route have witnessed catastrophic floods near their homes. For example, on August 28, 2011, Hurricane Irene caused extensive flooding, and was followed several days later by Tropical Storm Lee, which dropped almost a foot of rain along the proposed route. As a result of these extreme weather events, the potential water quality impacts of the pipeline were very real to STP’s members.

In addition to submitting its own extensive comments, STP ran campaigns to encourage the public to write comment letters to the DEC and created an online form to make it easier for concerned citizens to do it. Before the end of the first comment period, STP hand-delivered over 5,000 public comments to the DEC, and STP members submitted thousands more by mail and email. STP then organized press conferences and rallies in Albany and collaborated with a coalition of partners from across the northeast to make these events a success. On April 22, 2016, the DEC denied the Constitution Pipeline Company’s application for the required water quality certificate, which stopped the pipeline from being built.

The Constitution Pipeline Company brought and lost a series of legal proceedings in federal courts in 2016 and 2017 in an attempt to overturn the DEC’s denial. STP was a party in these proceedings and won these cases. The Constitution Pipeline Company then petitioned FERC to issue an order declaring the DEC had waived its right to deny the water quality certification. In 2018, FERC denied the petition and then denied the Company’s request for rehearing. However, in a sudden reversal, FERC issued an order on August 28, 2019 stating the DEC waived its authority to deny the required water quality certification because it did not act within one year of the Constitution Pipeline Company’s 2014 application. This decision tears at the fabric of our laws and strips states of their right to protect their water. STP must fight to reverse it, both to stop the pipeline and to set the right legal precedent. For us, and for people across the US, this is a battle that must be won.

Over the past seven and a half years, Anne Marie Garti has guided STP through these regulatory reviews and provided strategic advice about when and how to engage with the regulators and elected officials. She also wrote STP’s comments to FERC and hired experts to submit reports on water quality. After FERC conditionally approved the pipeline, she wrote a request for rehearing and when that was denied, briefs to the United States Court of Appeals for the Second Circuit. She worked with the Pace Environmental Litigation Clinic to develop comments to the DEC and then defend the DEC’s denial in various court proceedings. During September 2019, she wrote STP’s request for rehearing to FERC regarding its recent waiver order. However, she can no longer afford to do this work for free. She has informed the group that legal expenses challenging FERC’s decision will require a minimum of $55,000.

STP asks everyone to donate what they can and help us raise this money.

 

Future Legal Actions and Costs

Under the Natural Gas Act, all legal challenges must first be made in a request for rehearing to FERC. STP outlined the legal challenges it may bring in the future in its September 27, 2019 request for rehearing. Normally, STP would have to wait for FERC to issue a final order on its request for rehearing before it could petition a court for review. However, because FERC did not comply with an order issued by the U.S. Court of Appeals for the Second Circuit, STP may be able to get into court earlier. This effort will be crucial if the Constitution Pipeline Company asks FERC for a notice to proceed this winter so it can cut trees before April 1, 2020. That is why it is important to quickly raise $55,000, which will be required to petition the appropriate U.S. Court of Appeal for review of FERC’s order.

Other factors may influence when legal action would be needed. For example, some parties in Hoopa Valley Tribe v. FERC, the case on which FERC relies in its waiver order, have petitioned the U.S. Supreme Court to overturn that decision. Twenty-one states filed an amicus brief asking the Court to take the case. If the Supreme Court agrees to review Hoopa Valley Tribe, STP may want to file an amicus brief in early 2020. While this parallel proceeding may influence the timing of STP’s legal action against FERC, we have learned that the Constitution Pipeline Company will continue to use the courts to try to get the pipeline built. Therefore, STP has to be prepared to defend its interests no matter what happens.

 

How the money will be raised

STP’s Steering Committee will work with members of STP to raise the money for the legal campaign. The fundraising efforts will include:

– Asking STP’s members to contribute whatever they can afford.

– Asking those directly impacted by the pipeline to contribute.

– Asking financially well-off members of the community to contribute.

– Organizing small-scale, community-oriented fundraising events.

– Reaching out to like-minded members of the local or regional community for contributions.

– Asking local businesses for their financial support.

– Asking other groups who have an interest in clean air and water, fossil fuels, property rights, or climate issues to make donations to STP.

 

Fiscal Sponsor

STP has been operating under the umbrella of our fiscal sponsor, the Jerome Park Conservancy, since 2013. The Jerome Park Conservancy is a 501(c)(3) non-profit organization, so your donations are tax deductible to the extent allowed by law.
ALL money donated will go to the legal fund for STOPPING THE PIPELINE.You can learn more about fiscal sponsorships at the National Council of Nonprofits website:

https://www.councilofnonprofits.org/tools-resources/fiscal-sponsorship-nonprofits

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2019-11-05T23:58:24-05:00


PROGRESS TOWARD GOAL

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