Respondents Brief — Constitution Pipeline Company, LLC, Petitioner v. New York State Department of Environmental Conservation, et al.

Supreme Court briefMar 14, 2018

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No. 17-1009

IN THE

Supreme Court of the United States

CONSTITUTION PIPELINE COMPANY, LLC,

Petitioners,

NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION FOR

NEW YORK STATE RESPONDENTS

ERIC T. SCHNEIDERMAN

Attorney General

State of New York

BARBARA D. UNDERWOOD*

Solicitor General

ANDREW D. BING

Deputy Solicitor General

FREDERICK A. BRODIE

Assistant Solicitor General

BRIAN LUSIGNAN

Assistant Attorney General

Environmental Protection

Bureau

120 Broadway

New York, NY 10271

(212) 416-8020

barbara.underwood@ag.ny.gov

*Counsel of Record

QUESTION PRESENTED

Whether the State of New York acted arbitrarily

and capriciously when it denied a water-quality

certification for a natural gas pipeline under Clean

Water Act § 401, 33 U.S.C. § 1341, because the

applicant failed to provide material information about

the project’s anticipated impacts on state water

quality, despite the state agency’s repeated requests

for such information.

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE ....................................1

A. Introduction ......................................................1

B. The Pipeline and FERC Proceedings ...............2

C. The State’s Comprehensive Administrative

Review ...............................................................4

D. The State’s Denial.............................................7

E. Proceedings Below ............................................8

REASONS FOR DENYING THE PETITION ..........10

This Case Does Not Present the Question

of Whether A Water Quality Certification Can

Be Denied for Failure to Consider Alternative

Routes. .............................................................10

II. The Second Circuit’s Decision Does Not

Conflict with the Governing Statutes, Any

Decision of This Court, or the Decisions

of Other Circuit Courts. ..................................13

III. This Case Does Not Implicate the National

Security and Federalism Concerns Cited

by Petitioner. ...................................................15

CONCLUSION ..........................................................17

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Islander East Pipeline Co., LLC v. McCarthy,

525 F.3d 141 (2d Cir. 2008).................................. 12

National Fuel Gas Supply Corp. v. Public

Service Commission, 894 F.2d 571 (2d Cir.

1990) ..................................................................... 14

PUD No. 1 of Jefferson Cty. v. Washington

Dept. of Ecology, 511 U.S. 700 (1994) .................... 2

S.D. Warren Co. v. Maine Bd. of Environmental

Protection, 547 U.S. 370 (2006) ........................ 2,14

Schneidewind v. ANR Pipeline Co., 485 U.S.

293 (1988) ............................................................. 14

Weaver’s Cove Energy, LLC v. Rhode Island

Coastal Resources Management Council,

589 F.3d 458 (1st Cir. 2009)................................. 15

Laws

15 U.S.C.

§ 717b ................................................................. 2,14

§ 717f....................................................................... 2

33 U.S.C. § 1341 .................................................. 1,2,14

N.Y.C.R.R. tit. 6,

§ 621.7 ..................................................................... 5

§ 621.14 ................................................................... 5

STATEMENT OF THE CASE

A. Introduction

Following a comprehensive administrative process,

the State of New York concluded that petitioner

Constitution Pipeline Company, LLC failed to establish that its proposed construction of 100 miles of new

natural gas pipeline across undeveloped lands in

central New York, which would have crossed 220

streams and impacted more than 80 acres of wetlands,

would comply with water-quality standards. (Pet.

App. 25a-65a.) Accordingly, the State denied Constitution’s application for a water-quality certification

under Clean Water Act § 401, 33 U.S.C. § 1341.

Without a water-quality certification, the project could

not go forward as originally planned. In a thorough

decision, the Second Circuit upheld the State’s denial

of the § 401 certification, prompting Constitution to

seek review here.

This Court should deny the petition for certiorari,

which rests entirely on Constitution’s misreading of

the Second Circuit’s decision. Contrary to Constitution’s argument, the Second Circuit did not hold that

the State, rather than the Federal Energy Regulatory

Commission (FERC), had authority over the siting of

natural gas facilities. Rather, among other things,

that court held that New York’s denial of the § 401

certification was reasonable because Constitution had

“persistently refused” to provide information relating

to the methods it would use to minimize adverse

water-quality impacts where the proposed pipeline

crossed streams and wetlands. (Pet. App. 33a.)

All the conflicts that Constitution posits between

the Second Circuit’s decision and the Natural Gas Act,

this Court’s precedent, other circuit court decisions,

and federal energy policy, rest on its mistaken reading

of the Second Circuit’s decision and therefore are

illusory. This Court’s review is not warranted.

B. The Pipeline and FERC Proceedings

Under § 401 of the Clean Water Act, an applicant

for a federal license or permit that may result in

discharges into navigable waters must obtain a certification from the State that the project would comply

with applicable water-quality standards. 33 U.S.C.

§ 1341(a)(1). The State’s review covers both state and

federal water-quality standards. S.D. Warren Co. v.

Maine Bd. of Envtl. Prot., 547 U.S. 370, 374 (2006).

State water-quality certifications are required for

natural gas pipelines, just as they are for other

projects: the Natural Gas Act specifically does not

“affect[ ] the rights of States” under the Clean Water

Act. 15 U.S.C. § 717b(d)(3). A project cannot be licensed

without a State water-quality certification. See S.D.

Warren, 547 U.S. at 374; PUD No. 1 of Jefferson Cty.

v. Washington Dep’t of Ecology, 511 U.S. 700, 707-08

(1994).

In 2013, Constitution applied to FERC for a

certificate of public convenience and necessity under

Natural Gas Act § 7, 15 U.S.C. § 717f, for construction

of 124 miles of 30-inch-diameter natural gas pipeline,

temporary and permanent access roads, and various

related facilities. The proposed pipeline would stretch

from Susquehanna County, Pennsylvania to Schoharie

County, New York. (CA2 J.A. 132-133, 294.) The

pipeline would traverse roughly 100 miles in New

York State, almost all previously undisturbed and

undeveloped land. (CA2 J.A. 296, 1060, 1067.) It would

disrupt more than 80 acres of wetlands and cross 220

waterbodies in New York, while an additional 30

waterbodies would fall within the construction rightof-way. (CA2 J.A. 1218, 1235.)

FERC issued a certificate of public convenience

and necessity for the pipeline, but the certificate was

expressly “conditioned on” Constitution’s compliance

with environmental conditions recommended by FERC

staff in the environmental impact statement. (CA2

J.A. 1712, 1714.) Among those conditions was the

requirement that Constitution obtain “all applicable

authorizations required under federal law”—

including a Clean Water Act § 401 certification—

before beginning construction. (CA2 J.A. 1717.) FERC

reiterated the environmental impact statement’s

conclusion that “[c]onstruction and operation-related

impacts on waterbodies and wetlands will be further

mitigated by Constitution’s compliance with conditions

of the . . . Section 401 permit[ ] required under the

[Clean Water Act],” which FERC expected Constitution

to apply for and obtain. (CA2 J.A. 1691.)

On rehearing of the certificate, FERC noted that

until the State issued a § 401 certification,

“Constitution may not begin an activity, i.e., pipeline

construction, which may result in a discharge into

jurisdictional waterbodies.” (CA2 J.A. 2745-2746.)

Moreover, FERC recognized that “[i]f and when [the

State] issues” a § 401 certification, Constitution would

be “required to comply” with its conditions. (CA2 J.A.

2748-2749.) FERC also observed that the State had

the authority to require Constitution “to materially

modify its project to satisfy any conditions imposed.”

(Id.)

C. The State’s Comprehensive

Administrative Review

In August 2013, while FERC’s administrative

review was still pending, Constitution applied for a

Clean Water Act § 401 certification from the State.

(CA2 J.A. 208.) The Second Circuit’s opinion and the

State’s ruling both detail the extensive correspondence between Constitution and the State regarding

the application. (See Pet. App. 11a-22a, 44a-62a.)1

Following an initial, partial review, the State

notified Constitution that the application was

incomplete, and listed a number of additional

materials that would be required. (CA2 J.A. 214.)

Among other things, the State asked Constitution to

submit “all details for proposed stream crossings”.

(CA2 J.A. 216.) The State also repeatedly indicated its

preference for “trenchless” waterbody crossing methods,

which minimize impacts to water quality by drilling

under—rather than digging through—streams and

wetlands. (CA2 J.A. 77, 89, 166.)

Constitution submitted supplemental permit

application materials in November 2013, but refused

to provide some of the materials the State requested.

(CA2 J.A. 301, 379-382.) In particular, Constitution

1 Constitution’s suggestion that the State agreed to “rely” on

FERC’s environmental review (Pet. 12), does not accurately reflect

the record. The State told Constitution that, “[a]long with the

permit applications, the [State] also intends to rely on the federal

environmental review prepared pursuant to [NEPA] to determine if the Project will comply with applicable New York State

standards.” (CA2 J.A. 75-76 [emphasis added]; accord CA2 J.A.

164). The State thus intended to conduct its own review of

Constitution’s “permit application[ ] ” to assess the project’s

impacts to state water quality.

refused to evaluate the feasibility of trenchless

crossings at any streams less than 30 feet in width,

effectively eliminating most of the crossings from

consideration for use of the more protective technology. (CA2 J.A. 307, 319.)

On May 9, 2014, Constitution voluntarily withdrew

and re-submitted the application so the parties could

continue to develop it without risking expiration of the

one-year deadline for state action set by § 401 of the

Clean Water Act. (CA2 J.A. 851.)

In July 2014, the State requested additional

information to be included in a revised application.

(CA2 J.A. 891-95.) Constitution supplemented its

application in August 2014, but the supplement

included only “a portion” of the items the State had

requested. (CA2 J.A. 898.) Constitution submitted

further information in November 2014 (CA2 J.A.

1665); however, much of the information the State

sought was not provided.

In December 2014, the State published a Notice of

Complete Application, which opened a public comment

period on the application. (CA2 J.A. 1725.) The State’s

determination to treat the application as complete did

not preclude the agency from requesting further

information. See N.Y. Comp. Codes, Rules & Regs. tit.

6, § 621.14(b) (“6 N.Y.C.R.R.”). Rather, the State’s

regulations required a Notice of Complete Application

before public comment could be solicited. 6 N.Y.C.R.R.

§ 621.7(a). The State received more than 15,000 public

comments on the application. (CA2 J.A. 2853.) Active

review of the application continued throughout the

comment period and the following months. (CA2 J.A.

1853-1855.)

Constitution again supplemented its application

in February and March 2015. The new material still

did not include all the information relating to

waterbody impacts that the State had requested

almost a year earlier. (CA2 J.A. 2061.) In particular,

Constitution still refused to evaluate the use of

trenchless crossing technologies for any stream less

than 30 feet in width. (CA2 J.A. 1895.) At the small

number of crossings Constitution did evaluate,

Constitution did not complete full geotechnical

evaluations as requested by the State, and refused to

provide the State with the evaluations it had

completed. (CA2 J.A. 307, 353-59, 2055-2057, 20952097.) Constitution ultimately submitted geotechnical

evaluations for only two stream crossings. (CA2 J.A.

1855, 2079; Pet. App. 20a, 33a.)

On April 27, 2015, Constitution voluntarily

withdrew and resubmitted its application a second

time (CA2 J.A. 2072), thus giving the State additional

time to consider the recent supplemental submission

and the thousands of public comments it had received.

During the ensuing year, the State’s review of the

application and public comments continued, as did

active discussions with Constitution regarding

geotechnical investigations, third-party environmental

monitoring, and other topics relevant to the waterquality impacts on the many streams and other

waterbodies that would be affected.2 (CA2 J.A. 2248,

2 Contrary to Constitution’s claim that the State “shut down

substantive communications . . . during the eight month period”

before the denial (Pet. 14), the record includes at least 188 entries

for that period reflecting ongoing communications between the

State and Constitution on a range of issues related to water

quality.

2529-2533, 2594, 2602, 2607, 2612-2614, 2621, 2624,

2805.)

D. The State’s Denial

On April 22, 2016, the State denied Constitution’s

request for a § 401 certification. (Pet. App. 35a-65a.)

The State concluded that Constitution had “fail[ed] in

a meaningful way to address the significant water

resource impacts that could occur from this Project”

and “failed to provide sufficient information to demonstrate compliance with New York State water quality

standards.” (Pet. App. 36a.) The State outlined the

project’s large impact to numerous streams and

wetlands, including many classified as sensitive or

unique. (Pet. App. 38a-43a.)

The State determined that Constitution had failed

to provide sufficient information on the feasibility of

trenchless crossing methods at stream crossings. (Pet.

App. 51a-52a.) The State described its numerous

requests, dating back to June 2012, for technical information on the feasibility of trenchless crossings, and

Constitution’s continued failure to provide adequate

and complete information on that issue. (Pet. App.

53a-57a.) Instead, the State found, Constitution

provided a patchwork of insufficient information based

on limited analysis to support its conclusion that only

11 of the more than 250 streams could be crossed using

trenchless methods. (Pet. App. 59a.) In particular, the

State noted Constitution’s continued unwillingness to

evaluate the feasibility of trenchless crossing technologies at streams less than 30 feet wide or to provide

site-specific analyses, including geotechnical evaluations, for the handful of crossings it did evaluate. (Pet.

App. 58a-59a.) Based on Constitution’s failure to

provide adequate information on trenchless crossings

and other water-quality protection measures, the

State concluded that Constitution had failed to

demonstrate that the project would comply with New

York’s water-quality standards. (Pet. App. 60a.)

The State identified several additional bases for

denying the § 401 certification. First, the State

observed that Constitution had provided limited

analysis of pipe-burial depth covering only 21 of the

more than 251 streams, making it impossible for the

State to determine whether the proposed depth would

be sufficient to protect water-quality standards. (Pet.

App. 62a-63a.) Further, Constitution had failed to

provide site-specific information on whether and when

blasting would be required in waterbodies and

wetlands. (Pet. App. 63a.) Finally, Constitution had

failed to provide sufficient information on wetlands

crossings. (Pet. App. 64a.)

In describing the project’s background, the State

noted that it had asked Constitution to evaluate alternative routes that would minimize environmental

impacts by co-locating the pipeline with existing highway or power-line rights-of-way. (Pet. App. 38a-39a.)

E. Proceedings Below

Constitution petitioned for review of the denial in

the Second Circuit pursuant to Natural Gas Act § 19(d),

15 U.S.C. § 717r(d). The Second Circuit unanimously

rejected all of Constitution’s arguments. The Court

observed that the denial was not an improper collateral

attack on FERC’s permitting process, because “the

relevant federal statutes entitled [the State] to

conduct its own review of the Constitution Project’s

likely effects on New York waterbodies and whether

those effects would comply with the State’s water

quality standards.” (Pet. App. 28a.)

The Second Circuit noted that “[a] state’s

consideration of a possible alternative route that would

result in less substantial impact on its waterbodies is

plainly within the state’s authority.” (Pet. App. 29a.)

It then observed that it was unnecessary to address

Constitution’s numerous arguments that the State

was exceeding its authority in this consideration,

because “where an agency decision is sufficiently

supported by even as little as a single cognizable

rationale, that rationale, ‘by itself, warrants our denial

of [a] petition’ for review under the arbitrary-andcapricious standard of review.” (Pet. App. 29a [citation

omitted].)

The Second Circuit went on to explain that, apart

from Constitution’s failure to provide information on

alternative routes, the State had ample basis for

denying the certification—namely, Constitution’s

failure to provide multiple categories of requested

information. The court outlined the areas of information that the State had requested but not received, and

observed that Constitution did not even “claim to have

provided” that information. (Pet. App. 31a-32a.)

Accordingly, the Court concluded that “the record

amply shows, inter alia, that Constitution persistently

refused to provide information as to possible alternative routes for its proposed pipeline or site-by-site

information as to the feasibility of trenchless crossing

methods for streams less than 30 feet wide.” (Pet. App.

33a [emphasis added].)

The Second Circuit unanimously denied

Constitution’s motion for panel rehearing or rehearing

en banc. (Pet. App. 67a.)

REASONS FOR DENYING THE PETITION

The petition should be denied for three reasons.

First, it does not squarely present the issue on which

Constitution seeks review—both the State and the

Second Circuit rested their decisions on grounds

separate from and independent of the failure to

consider alternative routes. Second, the decision below

does not conflict with any decision of this Court or any

other court. Third, the case does not present the issues

of national security and federalism that petitioner

seeks to raise.

This Case Does Not Present the Question of

Whether A Water Quality Certification Can

Be Denied for Failure to Consider Alternative

Routes.

The petition should be denied because this case

does not squarely present the issue that Constitution

seeks to have reviewed, namely, whether a State may

deny a certification under § 401 of the Clean Water Act

“on the basis of purportedly receiving insufficient

information regarding alternative routes for [an]

interstate natural gas pipeline” (see Pet. ii). The State

based its denial on Constitution’s failure to support its

application in multiple areas. Thus, even if Constitution’s failure to provide information regarding

“alternative routes” were one of the areas on which the

Second Circuit relied—and, as shown below, it was

not—the State denied Constitution’s application for a

water-quality certification based on numerous

independent grounds.

Contrary to Constitution’s argument, the Second

Circuit did not hold that the “single cognizable

rationale” for the denial was “the issue of alternative

routes” (Pet. 16). Rather, the Second Circuit observed

that the State was authorized to request information

regarding alternative routes. (Pet. App. 29a.) The

court added, however, that it “need not address”

Constitution’s contention that the State relied on

improper factors because the State’s decision was

independently sustainable on other grounds and,

“where an agency decision is sufficiently supported by

even as little as a single cognizable rationale, that

rationale, ‘by itself, warrants our denial of [a] petition’

for review under the arbitrary-and-capricious standard

of review.” (Pet. App. 29a [record citation omitted].)

The Second Circuit observed that the State had

“requested but had not received sufficient information

with regard to” multiple issues, including not only

“alternative routes,” but also “construction methods

and site-specific project plans for stream crossings”;

“pipeline burial depth in stream beds”; “procedures

and safety measures Constitution would follow in the

event that blasting is required”; “plans to avoid,

minimize, or mitigate discharges to navigable waters

and wetlands”; and “cumulative impacts” from the

project. (Pet. App. 31a; see also Pet. App. 15a-22a, 33a

[Second Circuit]; 50a-52a, 58a-64a [administrative

denial].) The court recognized that “[n]owhere does

Constitution claim to have provided the above categories of information.” (Pet. App. 32a.) Constitution’s

failure to provide information as to any one of those

other matters—all of which fall within New York’s

authority under § 401—suffices to uphold the denial.

Indeed, the Second Circuit made clear that the

State had “focused principally on Constitution’s failure

to provide information with respect to stream crossings.” (Pet. App. 16a [record citation omitted].) Apart

from the refusal to provide information as to possible

alternative routes, the Second Circuit ultimately

concluded that the denial could be upheld because

Constitution “persistently refused” to submit “site-bysite information as to the feasibility of trenchless

crossing methods for streams less than 30 feet wide—

i.e., the vast majority of the 251 New York waterbodies

to be crossed by its pipeline.” (Pet. App. 33a.)

Accordingly, reading the decision below in context,

the Second Circuit held that the failure to provide

information regarding waterbody-crossing technologies

constituted at least one valid reason supporting the

State’s denial. That reason would support the denial

independently, even if the State’s request for information regarding possible alternative routes had been

improper. (See Pet. App. 29a-33a.) Thus, contrary to

the suggestion of amici (Br. for National Ass’n of Mfrs.

et al. at 21), the State did not act “based on its disagreement with FERC over a matter within FERC’s

exclusive authority.” Rather, the State denied the

certification because Constitution had not provided

information on stream-crossing methods and other

issues directly within the State’s authority under

Clean Water Act § 401.

Further, the State did not require that the proposed

pipeline be rerouted. The State simply expressed its

dissatisfaction with Constitution’s failure to explore

fully an alternative route that would co-locate the

pipeline with an existing right-of-way instead of

clearing 100 miles of new right-of-way. (Pet. App. 38a39a, 60a.) Such analysis reasonably fell within the

State’s overarching mission under § 401(a) to enforce

state water-quality standards. Examining impacts on

water quality necessarily requires the State to

examine a project’s location. See, e.g., Islander E.

Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 151-52

(2d Cir.), cert. denied, 555 U.S. 1046 (2008).

In sum, even if the State’s observations regarding

possible alternative routes exceeded its authority

under Clean Water Act § 401 (and they did not), the

Second Circuit upheld the denial based on other valid

grounds. As shown above, the Second Circuit confirmed

the State’s denial of a water-quality certification based

on Constitution’s failure to provide information on

many issues, most notably the means by which

Constitution would minimize impacts on the many

streams the pipeline would cross. Therefore, this case

does not squarely present the question of whether

failure to provide information on alternative routes

can justify denying a water-quality certification, and

this Court’s resolution of the issue proposed by

Constitution would be an academic exercise.

Accordingly, the petition should be denied.

II. The Second Circuit’s Decision Does Not

Conflict with the Governing Statutes, Any

Decision of This Court, or the Decisions of

Other Circuit Courts.

The Court should deny certiorari for the additional

reason that the Second Circuit’s decision does not

conflict with any decision of this Court or any other

court of appeals.

First, the Second Circuit’s decision is a straightforward application, on the specific administrative

record in this case, of the Clean Water Act’s carve-out

for state water-quality regulation, which the Natural

Gas Act expressly preserves. As the Second Circuit

recognized (Pet. App. 28a-29a), Clean Water Act § 401

authorizes States to deny certification to a federally

approved project when the applicant fails to establish

that the project will comply with state water-quality

standards. See 33 U.S.C. § 1341(a)(1), (d). If a State

denies a § 401 certification, “[n]o license or permit

shall be granted” for the project by the federal

permitting agency. Id. § 1341(a)(1). The Natural Gas

Act broadly preserves the States’ authority over

water-quality issues by providing that “nothing in [the

Natural Gas Act] affects the rights of States under”

the Clean Water Act. 15 U.S.C. § 717b(d)(3).

Second, the decision below is consistent with this

Court’s decisions. This Court has recognized that § 401

“was meant to ‘continu[e] the authority of the

State . . . to act to deny a permit and thereby prevent

a Federal license or permit from issuing to a discharge

source within such State.’” S.D. Warren, 547 U.S. at

380 (quoting S. Rep. No. 92-414, at 69 [1971]). No

similar express preservation of state rights was at

issue in Schneidewind v. ANR Pipeline Co., relied on

by Constitution, which held that the Natural Gas Act

occupied the field with respect to the issuance of

securities of natural gas companies, preempting a

state law attempting to regulate in that arena. 485

U.S. 293, 309-11 (1988).

Third, the two circuit cases cited by Constitution

to show a conflict (Pet. 16-17) miss the mark. The

Second Circuit’s decision in National Fuel Gas Supply

Corp. v. Public Service Commission did not involve the

State’s federally granted authority under the Clean

Water Act. Instead, it concerned regulations under the

State’s Public Service Law, which were not federally

sanctioned. See 894 F.2d 571, 574-75 (2d Cir.), cert.

denied, 497 U.S. 1004 (1990). Moreover, even if

National Fuel Gas conflicted with the decision below

(and it does not), an intra-circuit conflict does not

merit this Court’s review. Notably, the Second Circuit

denied Constitution’s petition for panel rehearing or

rehearing en banc. (Pet. App. 67a.)

As for Weaver’s Cove Energy, LLC v. Rhode Island

Coastal Resources Management Council, that case

concerned a Rhode Island state licensing program for

coastal dredging. 589 F.3d 458, 472 (1st Cir. 2009). As

relevant here, the First Circuit held that the state

dredging regulation could not block the construction of

a liquefied natural gas terminal when FERC had

exercised its federal authority to permit the dredging.

Id. at 473-74. Again, the State’s separate, federally

preserved right to review water-quality impacts under

§ 401 of the Clean Water Act was not implicated.

III. This Case Does Not Implicate the National

Security and Federalism Concerns Cited by

Petitioner.

This case does not raise the national security and

federalism concerns that Constitution seeks to invoke.

Nothing in FERC’s conditional certificate or

rehearing order indicated that the agency considered

Constitution’s proposed pipeline to be necessary as a

matter of national security. (See CA2 J.A. 1668-1686,

1711-1713, 2723-2798.) Rather, the Certificate reflected

FERC’s judgment that the benefits of the project

would outweigh the costs only if Constitution complied

with certain environmental conditions, including satisfying the State that the project would comply with

state water-quality standards. (CA2 J.A. 1668, 17111712, 1717.) Thus, there is no basis for petitioner’s

claim that national security concerns warrant this

Court’s review.

Nor does the decision implicate federalism

concerns. Constitution’s argument that the Second

Circuit’s decision would violate the Supremacy and

Commerce Clauses of the U.S. Constitution (Pet. 2125) is premised on the incorrect proposition that the

State exceeded its authority in denying the application

for a Clean Water Act § 401 certification. To the

contrary, as demonstrated above (at 13-14), the Second

Circuit’s decision is consistent with the cooperative

federalism framework established by § 401 of the Clean

Water Act and § 717b(d)(3) of the Natural Gas Act.

Therefore, federalism concerns do not support a grant

of certiorari.

Finally, the State’s denial of the § 401 certification

was effectively without prejudice: Constitution remains

free to re-apply for a § 401 certification and provide

the information the State determined to be deficient.

(Pet. App. 65a.)

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,