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

No. 17-1009

d

IN THE

Supreme Court of the United States

CONSTITUTION PIPELINE COMPANY, LLC,

Petitioner,

—v.—

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 INTERVENORSRESPONDENTS CATSKILL MOUNTAINKEEPER, INC.;

RIVERKEEPER, INC.; AND SIERRA CLUB

DEBORAH GOLDBERG

Counsel of Record

EARTHJUSTICE

48 Wall Street, 19th Floor

New York, New York 10005

(212) 845-7377

dgoldberg@earthjustice.org

Counsel for IntervenorsRespondents Catskill

Mountainkeeper, Inc.;

Riverkeeper, Inc.;

and Sierra Club

i

QUESTION PRESENTED

Whether the Second Circuit erred in concluding

that the New York State Department of Environmental

Conservation (“NYSDEC” or the “Department”)

acted reasonably and in accordance with applicable

law when it denied the application of the

Constitution Pipeline Company (“Constitution”) for

a water quality certification under Section 401 of

the Clean Water Act, 33 U.S.C. § 1341, on the

grounds that Constitution failed to provide

sufficient information on the construction methods

to be used at each waterway crossed by its 124-mile

pipeline, the water quality impacts of potential

alternative routes, cumulative impacts, and other

site-specific aspects of the proposed project.

ii

RULE 29.6

CORPORATE DISCLOSURE STATEMENT

Catskill

Mountainkeeper,

Inc.:

Catskill

Mountainkeeper, Inc. has no parent companies,

and there are no publicly held companies that have

a 10 percent or greater ownership interest in

Catskill Mountainkeeper, Inc.

Catskill Mountainkeeper, Inc., a corporation

organized and existing under the laws of the State

of New York, is a nonprofit organization dedicated

to being the strongest and most effective possible

advocate for the Catskill region. Catskill

Mountainkeeper, Inc., works through a network of

concerned citizens to promote sustainable growth

and protect the natural resources essential to

healthy communities in the Catskill region.

Riverkeeper, Inc.: Riverkeeper, Inc. has no

parent companies, and there are no publicly held

companies that have a 10 percent or greater

ownership interest in Riverkeeper, Inc.

Riverkeeper, Inc., a corporation organized and

existing under the laws of the State of New York, is

a nonprofit organization dedicated to protecting the

environmental, recreational, and commercial

integrity of the Hudson River and its tributaries,

and to safeguarding the drinking water of nine

million New York City and Hudson Valley

residents.

Sierra Club: Sierra Club has no parent

companies, and there are no publicly held

companies that have a 10 percent or greater

ownership interest in Sierra Club.

iii

Sierra Club, a corporation organized and existing

under the laws of the State of California, is a

national nonprofit organization dedicated to the

protection and enjoyment of the environment.

iv

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED . . . . . . . . . . . . . . . . . .

i

RULE 29.6 CORPORATE

DISCLOSURE STATEMENT . . . . . . . . . . . .

ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . .

v

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .

1

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

2

REASONS FOR DENYING THE PETITION

FOR A WRIT OF CERTIORARI . . . . . . . . . .

8

I.

CONSTITUTION MISCHARACTERIZES

THE SECOND CIRCUIT’S

HOLDING . . . . . . . . . . . . . . . . . . . . . . . . . . .

8

II. THE SECOND CIRCUIT’S DECISION

IS WHOLLY CONSISTENT WITH

FEDERAL LAW . . . . . . . . . . . . . . . . . . . . .

10

III. THE SECOND CIRCUIT’S DECISION

IS UNRELATED TO ISSUES OF

FEDERALISM OR NATIONAL

SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . .

12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

v

TABLE OF AUTHORITIES

PAGE(S)

Cases

AES Sparrows Point LNG, LLC v. Smith,

527 F.3d 120 (4th Cir. 2008) . . . . . . . . . . . . .

10

Islander East Pipeline Co. v. McCarthy,

525 F.3d 141 (2d Cir. 2008), cert. denied,

555 U.S. 1046 (2008) . . . . . . . . . . . . . . . . . . . . 10, 11

National Fuel Gas Supply Corp. v.

Public Service Commission of

the State of New York,

894 F.2d 571 (2d Cir. 1990) . . . . . . . . . . . . . .

11

PUD No. 1 of Jefferson Cnty.

v. Wash. Dep’t of Ecology,

511 U.S. 700 (1994) . . . . . . . . . . . . . . . . . . . . . .

11

Schneidewind v. ANR Pipeline Co.,

485 U.S. 293 (1988) . . . . . . . . . . . . . . . . . . . . . .

11

Weaver’s Cove Energy, LLC v. Rhode Island

Coastal Resources Management Council,

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

11

Statutes

15 U.S.C. § 717b . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3, 10

15 U.S.C. § 717f . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

33 U.S.C. § 1341,

Section 401 of the Clean Water Act . . . . . . . . . 3, 10

42 U.S.C. § 4321 et seq.,

National Environmental Policy Act . . . . . . . . . . . 2

1

INTRODUCTION

In enacting the Natural Gas Act (“NGA”),

Congress gave the Federal Energy Regulatory

Commission (“FERC” or the “Commission”)

primary authority over interstate gas pipelines but

preserved the authority of states under three

environmental statutes: the Clean Air Act, the

Coastal Zone Management Act, and the Clean

Water Act. Acting within that reserved authority,

NYSDEC reviewed Constitution’s application for

certification that its 124-mile gas pipeline would

not violate the State’s water quality standards.

Over a period of years, NYSDEC repeatedly asked

Constitution for information relating to whether

and to what extent the pipeline might affect the

water quality of the 251 waterways the project

would cross in the state. Constitution persistently

refused, however, to provide much of that

information, including site-specific data and

analyses of whether less damaging construction

methods could be used. Consequently, NYSDEC

was unable to certify that the pipeline would

comply with the Clean Water Act’s requirements

and denied Constitution’s application without

prejudice.

Constitution appealed the denial, but the Second

Circuit

held

that

Constitution

failed

to

demonstrate that NYSDEC’s information requests

were arbitrary, capricious, or outside the bounds of

Section 401. Indeed, based on its review of the

record, the court concluded that Constitution

ignored NYSDEC’s requests for information related

to potential water quality impacts and simply

failed to meet its burden to demonstrate that its

project could be certified.

2

The Second Circuit’s record-based and wellreasoned determination does not warrant review by

this Court; does not conflict with any existing

federal law; and, contrary to the overblown claims

by Constitution and its amici, presents absolutely

no threat to federalism, interstate commerce, or

national security. The Court should deny the

petition for certiorari.

STATEMENT OF THE CASE

This case concerns the U.S. Court of Appeals for

the Second Circuit’s decision to uphold NYSDEC’s

denial of an application under Section 401 of the

Clean Water Act to Constitution for its 124-mile

natural gas pipeline.

The pipeline would cut

through both Pennsylvania and New York, and

cross 251 streams, disturb 3,161 linear feet of

streams, and affect at least 95.2 acres of wetlands

during construction in New York State alone. (Pet.

App. 39a–40a.)

Because of the Project’s potential to degrade

water quality, Constitution was required to obtain

approval for the pipeline from both FERC and

NYSDEC. FERC has authority under the NGA to

determine whether the project is in the public

convenience and necessity, see 15 U.S.C. § 717f,

and also is required to review the project’s

environmental impacts by the National Environmental

Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. The

Commission reviewed Constitution’s project and

approved it, subject to conditions, including that

New York State grant or waive certification of the

3

project under Section 401 of the Clean Water Act.1

CA2 JA1667–1724.2

Although FERC has primary jurisdiction under

the NGA and NEPA, the NGA expressly preserves

state authority under Section 401 of the Clean

Water Act. See 15 U.S.C. § 717b(d)(3). Section 401

directs states to review and certify whether

potential discharges from projects receiving federal

approval would comply with all relevant provisions

of the Act. 33 U.S.C. § 1341.

On August 21, 2013, Constitution submitted its

application to NYSDEC for a certification under

Section 401. (Pet. App. 44a.)3 NYSDEC provided

notice that the application was incomplete on

September 12, 2013, because the application

contained

insufficient

information

for

the

Department to proceed with its review. (Pet. App.

44a, 50a.) Still lacking a complete application, on

May 9, 2014, Constitution voluntarily withdrew

and then resubmitted its application. (Pet. App.

44a.) On December 24, 2014, NYSDEC issued a

Notice of Complete Application under New York

state law, which commenced a comment period that

was extended until February 27, 2015. (Id.) The

comments submitted raised numerous substantive

1

The adequacy of FERC’s review of the Project’s

environmental effects under NEPA has been challenged in a

separate proceeding that still is pending before the Second

Circuit. Pet. for Review, Catskill Mountainkeeper, Inc. v. FERC,

No. 16-345 (2d Cir. Feb. 5, 2016).

2

CA2 JA refers to the Joint Appendix filed in the Second

Circuit proceeding.

3

Constitution also requested a 401 Certification for the

25 miles of the pipeline located in Pennsylvania. That request

was granted on September 5, 2014. See CA2 JA1056.

4

concerns about Constitution’s application and, as a

result, NYSDEC sent Constitution additional

requests for information. (Pet. App. 45a.) To give

Constitution time to supplement its application

and address the deficiencies commentators and

NYSDEC identified, Constitution again voluntarily

withdrew and then resubmitted its application to

NYSDEC on April 27, 2015. (Id.)

After considering the information it received,

including the comments submitted by the public,

NYSDEC issued a denial of Constitution’s

application on April 22, 2016. (See Pet. App. 35a–

65a.) The Department explained that Constitution

had failed to provide NYSDEC with enough

information to allow the Department to certify that

the potential discharges from its pipeline would

comply with the Clean Water Act, as implemented

by New York State. (See id. 36a; see generally id.

35a–65a.) In particular, Constitution failed to

provide enough information to demonstrate that

the potential discharges from the pipeline would

not “materially interfere with or jeopardize the

best usages” of each waterbody crossed and

therefore comply with the State’s water quality

standards. (Id. at 50a.) Because NYSDEC based

its determination on Constitution’s failure to

provide sufficient information, NYSDEC stated

that Constitution was free to submit another

application curing the deficiencies described in the

NYSDEC’s denial. (Id. at 65a.)

Rather than resubmit its application and supply

NYSDEC with the missing information, Constitution

filed suit in the Second Circuit, challenging

NYSDEC’s decision. Constitution contended that

(1) NYSDEC missed its deadline for acting under

the NGA and the Clean Water Act, (2) the denial

5

exceeded NYSDEC’s scope of authority under the

Clean Water Act, (3) the denial was a collateral

attack on FERC’s decision, and (4) NYSDEC’s

decision was not supported by the record and was

arbitrary and capricious.

Final Br. for Pet’r

at 23−66, Constitution Pipeline Co. v. Seggos,

No. 16-1568 (2d Cir. Oct. 17, 2016). Catskill

Mountainkeeper, Inc.; Riverkeeper, Inc.; and Sierra

Club sought leave and were granted permission to

intervene.

Order, Constitution Pipeline Co. v.

Seggos, No. 16-1568 (2d Cir. June 17, 2016). FERC

elected not to participate in the proceedings.

After extensive briefing and oral argument, the

Second Circuit issued a unanimous decision

rejecting Constitution’s arguments and upholding

NYSDEC’s decision. (Pet. App. 1a–34a.) The panel

held that it lacked jurisdiction over Constitution’s

claim that the NYSDEC decision was untimely,

because the NGA clearly gave the Court of Appeals

for the District of Columbia exclusive jurisdiction

to hear such challenges. (Pet. App. 25a–26a (citing

15 U.S.C. § 717r(d)(2)).)

The Second Circuit also denied Constitution’s

challenge on the merits. (Pet. App. 33a–34a.) The

court concluded that NYSDEC’s denial was lawful

and squarely within the state’s power under

the Clean Water Act. (Id.) The court rejected

Constitution’s argument that FERC’s authority

under NEPA and the NGA preempts NYSDEC’s

ability “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. at 28a.) Indeed, the court found that in

enacting NEPA, the NGA, and the Clean Water

Act, Congress endorsed a “statutory scheme

6

whereby a single state agency [can] effectively

veto[ ] an energy pipeline that has secured approval

from a host of other federal and state agencies.” (Id.

at 28a–29a (internal citations omitted) (quoting

Islander East Pipeline Co. v. McCarthy, 525 F.3d

141, 164 (2d Cir. 2008) (“Islander East II”), cert.

denied, 555 U.S. 1046 (2008)).)

The court concluded that NYSDEC’s denial was

reasonable, because Constitution failed to provide

the information necessary to process the application:

[T]here is nothing in the administrative

record to show that NYSDEC received the

information it had consistently and

explicitly requested over the course of

several years—much less anything to

support Constitution’s claim that NYSDEC

said it had all the information it required

to issue the requested certification.

(Pet. App. at 25a (internal citations omitted).)

The Second Circuit also rejected Constitution’s

claims that (1) the information NYSDEC sought on

construction methods was unnecessary and (2) the

information NYSDEC requested on alternative

routes was outside NYSDEC’s ability to consider.

(See id. at 29a.) Constitution claimed that it was

not obligated to provide information on the feasibility

of using the construction method NYSDEC

determined caused fewer impacts to water quality,

because that method was not the industryrecognized standard. (See id. at 31a–32a.) But the

Second Circuit concluded that “in order to show

that an agency’s decision—or its request for

additional information as to alternative methods—

is arbitrary and capricious, it is not enough that

the regulated industry has eschewed a given

7

[technology]. Industry preferences do not circumscribe

environmental relevance.” (Id. at 32a (internal

citations omitted).) With respect to NYSDEC’s

requests for information on alternative routes, the

court found 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.” (Id. at 29a.)

Following the Second Circuit’s unanimous

decision, Constitution sought reconsideration and

rehearing en banc. Both were denied. (Pet. App.

66a–67a.) Separately, Constitution also filed a

request with FERC seeking to have the

Commission nullify NYSDEC’s denial based on the

timeliness of the Department’s decision. Petition

for Declaratory Order, Docket No. CP18-5-001

(FERC Oct. 11, 2017).

FERC’s commissioners

unanimously rejected Constitution’s request in an

order dated January 11, 2018. In re Constitution

Pipeline Co., 162 FERC ¶ 61,104 (Jan. 11, 2018).

On February 12, 2018, Constitution filed a

rehearing request, asking that FERC reconsider

and reverse its decision.

See Request for

Rehearing of Constitution Pipeline Co., In re

Constitution Pipeline Co., Docket No. CP18-5-000

(FERC Feb. 12, 2018). The rehearing request was

tolled on March 14, 2018. See Order Granting

Rehearing for Further Consideration, In re

Constitution Pipeline Co., Docket No. CP18-5-001

(FERC Mar. 14, 2018).

8

REASONS FOR DENYING THE PETITION

FOR A WRIT OF CERTIORARI

Constitution’s petition does not present any

remotely compelling reason for the Court to review

the Second Circuit’s decision.

Contrary to

Constitution’s assertions, the decision is not based

on the single finding that state agencies may

consider alternative routes for gas pipelines under

FERC’s jurisdiction. The Second Circuit based its

ruling on a thorough review of a detailed and

highly technical record and concluded that

Constitution failed to provide multiple categories of

information the state needed to evaluate the

proposed project’s potential to degrade water

quality. As a result, the Second Circuit’s decision

does not conflict with any decision by this Court or

other courts of appeals and does not raise any

federalism

or

national

security

concerns.

Constitution’s petition therefore fails to present

any issue that would warrant consideration by the

Court.

I.

Constitution Mischaracterizes the Second

Circuit’s Holding.

Constitution and its amici wrongly represent

that the Second Circuit’s decision is based entirely

on NYSDEC’s request for information on

alternative routes. (Pet. App. 7; Br. of Amici

Curiae Nat’l Ass’n of Mfrs. et al. 5 (“Amici Br.”).)

The court’s holding, in fact, rests on Constitution’s

“persistent[]” failure to provide NYSDEC with

information on three major issues: (1) site-by-site

information on the feasibility of using NYSDEC’s

preferred crossing method for “the vast majority of

the 251 New York waterbodies to be crossed by its

pipeline,” (2) geotechnical data for 249 of the 251

9

waterbodies, and (3) possible alternative routes.

(Pet. App. 33a.)

The court made clear that

Constitution’s refusal to provide information across

all these categories defeated Constitution’s claim

that NYSDEC’s denial was arbitrary, capricious, or

unlawful. (See id.) Indeed, even if the court had

agreed with Constitution that NYSDEC’s request

for information on alternative routes was improper,

that alone would not have changed the outcome of

the case, given how much information on other

issues remained missing from Constitution’s

application.

Constitution also is wrong that the Second

Circuit’s decision gives states newfound authority

to summarily reroute a FERC pipeline. (See Pet.

18–19; Amici Br. 19–20.) The opinion below merely

rejects Constitution’s argument that NYSDEC’s

request for information about alternative routes by

itself invalidated the entire denial. (See Pet. App.

29a.) The court found that when “consideration of

a possible alternative route … [could] result in less

substantial impact on its waterbodies,” it is within

the state’s authority to ask for information on those

alternative routes. (Id.) Because Constitution

never provided NYSDEC with information on

alternative routes, it would be pure speculation to

conclude that NYSDEC would have ordered a

rerouting of the pipeline or vetoed the pipeline

solely because it was not routed to avoid impacts to

water quality. Whether the state has the authority

to take such actions was not directly addressed by

the Second Circuit’s opinion.

10

II. The Second Circuit’s Decision Is Wholly

Consistent with Federal Law.

When read accurately, it is clear that nothing in

the decision below is inconsistent with this Court’s

precedent, the precedent of other Circuit courts, or

federal statutes. FERC’s authority over gas pipelines

is not exclusive, because the NGA expressly

preserves state authority under the Clean Water

Act, the Clean Air Act, and the Coastal Zone

Management Act intact. 15 U.S.C. § 717b(d); see

also AES Sparrows Point LNG, LLC v. Smith, 527

F.3d 120, 123 (4th Cir. 2008). Thus, using the

authority given to it in Section 401, 33 U.S.C. § 1341,

a state that cannot certify a gas pipeline’s

compliance with the Clean Water Act may veto the

project, even if FERC has issued the approvals

committed to its jurisdiction under the NGA and

NEPA. See Islander East II, 525 F.3d at 164.4

Constitution therefore is wrong that allowing

NYSDEC to prevent the pipeline at issue here from

moving forward is at odds with any federal law.

Allowing a state agency to consider information

on alternative routes also does not conflict with

any federal precedent or law. Federal courts, in

fact, have found that a wide range of factors can be

4

Because of the express preservation of state authority by

the NGA, this Court should reject the suggestion that NYSDEC

cannot issue a decision under Section 401 that is contrary to

FERC’s findings on the project’s potential impacts to water

quality, without challenging FERC’s decision under the judicial

review provisions of the NGA. Constitution’s arguments (see,

e.g., Pet. App. 20–21; Amici Br. 12) are completely at odds with

the different and independent authority provided to state

agencies with powers under the Clean Water Act and reflect a

total misunderstanding of the environmental review process

undertaken by FERC under NEPA.

11

considered as part of the Section 401 review. The

Court in PUD No. 1 of Jefferson County concluded

that the state could consider water quantity as part

of the inquiry whether a project could be granted a

401 water quality certification. See PUD No. 1 of

Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S.

700, 717–19 (1994). In Islander East II, the Second

Circuit found that consideration of anchor strikes

and cable sweeps on the bottom of the waterway

properly fell within the state’s authority under

Section 401. See 525 F.3d at 157. Considering

options, such as alternative pipeline routes, that

would reduce or eliminate potential impacts to

water quality is equally related to determining

whether a project will comply with the Clean Water

Act.

The cases Constitution claims conflict with the

decision below are wholly inapposite, as they

involve instances where states attempted to assert

control well beyond the powers reserved to them

under the NGA. In Schneidewind v. ANR Pipeline

Co., this Court found that the NGA preempted a

requirement that certain public utilities obtain

state agency approval before issuing long-term

securities. 485 U.S. 293, 310 (1988). In National

Fuel Gas Supply Corp. v. Public Service

Commission of the State of New York, the Second

Circuit nullified the state’s attempt to require that

a FERC-approved pipeline obtain a state certificate

of need and environmental compatibility, where the

certificate was wholly a creature of state law and

had nothing to do with the state’s reserved role

under any federal statute. See 894 F.2d 571, 579

(2d Cir. 1990). In Weaver’s Cove Energy, LLC v.

Rhode Island Coastal Resources Management

Council, the First Circuit found that a state’s

12

additional dredging permitting requirement—

which was not included in the authority provided

to it under the Coastal Zone Management Act—was

preempted by the NGA. 589 F.3d 458, 472–74 (1st

Cir. 2009). There is no conflict between precedent

from other circuits and the decision below.

III. The Second Circuit’s Decision Is Unrelated

to Issues of Federalism or National

Security.

There are no Supremacy Clause or federalism

issues implicated by the decision below that would

warrant this Court granting certiorari. Despite

Constitution’s protestations to the contrary, by

exempting the exercise of state authority under the

Clean Water Act from the NGA’s preemptive scope,

Congress consciously created a system where states

play a role in determining whether a gas pipeline

project may proceed. Here, the State of New York

acted within its authority under Section 401 to

request information relating to the project’s

potential impacts to water quality.

When

Constitution failed to provide that information and

meet its burden under Section 401, the State

rightfully declined to certify that the project would

comply with the Clean Water Act. This exercise of

reserved power is consistent with the cooperative

federalism Congress sought to create in passing the

Clean Water Act and allowing states to retain

water quality certification authority for projects

otherwise under FERC’s jurisdiction.

Similarly, there are absolutely no national

security concerns related to the Second Circuit’s

decision. Constitution and its amici provide no

support whatsoever for their suggestion that this

pipeline is tied to any issue of national security.

13

The policy arguments made by Constitution and

the amici also paint a one-sided picture of the

purported economic and policy benefits of gas

infrastructure projects. By preserving state power

to review and reject projects under three

environmental statutes, Congress rejected the idea

that the so-called benefits of gas touted by industry

trump all project costs.

State agencies—the

experts in regional and local environmental

matters—retain the authority to ensure that the

environment and the health and wellbeing of

communities also are protected. Consistent with

Congress’ intent, New York State acted to protect

the quality of its waterways, and Constitution has

not presented any compelling reason for this Court

to review the Second Circuit’s decision deferring to

NYSDEC’s findings.

14

CONCLUSION

For the foregoing reasons, the Court should deny

the petition for a writ of certiorari.

Respectfully submitted,

DEBORAH GOLDBERG

Counsel of Record

MONEEN NASMITH*

EARTHJUSTICE

48 Wall Street, 19th Floor

New York, NY 10005

(212) 845-7377

dgoldberg@earthjustice.org

Counsel for IntervenorsRespondents Catskill

Mountainkeeper, Inc.;

Riverkeeper, Inc.; and

Sierra Club

*Application for Admission

currently pending

March 22, 2018