# Amicus Curiae Brief — Islander East East Pipeline Pipeline Co., LLC v. McCarthy (No. 08-367) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0231%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2008 ## Text - 08-367 Supreme Court of the Gnited States ISLANDER EAST PIPELINE COMPANY, L.L.C.., Petitioner, v. GINA MCCARTHY, COMMISSIONER OF THE STATE OF CONNECTICUT DEPARTMENT OF ENVIRONMENTAL PROTECTION, and STATE OF CONNECTICUT DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit | BRIEF AMICI CURIAE OF THE INTERSTATE _ NATURAL GAS ASSOCIATION OF AMERICA, : THE AMERICAN GAS ASSOCIATION, | THE NATURAL GAS SUPPLY ASSOCIATION, | THE INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA, AND THE NORTHEAST GAS ASSOCIATION | —_ —_-— —_ —e Te: KEVIN B. BELFORD ANDREW SOTO AMERICAN GAS ASSOCIATION 400 N. Capitol St., NW Washington, D.C. 20001 (202) 824-7070 * Counsel of Record DONALD F.. SANTA JOAN DRESKIN TIMM ABENDROTH * DAN REGAN INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA 10 G Street, NE Suite 700 Washington, DC 20002 (202) 216-5912 Counsel for Amici Curiae [Additional Counsel Listed On Inside Cover] WILSON-EPES PRINTING CO.,INC. — (202) 789-0096 - WASHINGTON, D C. 20002 IN THE OFFICE OF THE CLE RK R. SKIP HORVATH PATRICIA JAGTIANI NATURAL GAS SUPPLY ASSOCIATION 805 15th Street, NW Suite 510 Washington, D.C. 20005 (202) 326-9300 BARRY RUSSELL INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA 1201 15th Street, NW Suite 300 Washington, D.C. 20005 (202) 857-4722 THOMAS M. KILEY NORTHEAST GAS ASSOCIATION 75 Second Avenue Suite 510 Needham, MA 02494 (781) 455-6800 Counsel for Amici Curiae —_—_. = ee a QUESTIONS PRESENTED In PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U. S. 700, 722 (1994), the Court reserved the question whether a state water quality certification under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341, can stand if it conflicts with a licensing decision of the Federal Energy Regulatory Commission (FERC). The issue in PUD No. 1 was hypothetical because FERC had not yet acted. This case presents an actual conflict: FERC licensed Petitioner’s proposed pipeline under the Natural Gas Act (NGA), subject to construction restrictions addressed to impacts on the sea floor and shellfish, but Respondent Connecticut Department of Environ- mental Protection (CTDEP) effectively vetoed the project by denying Petitioner’s application for a clean water certificate under CWA § 401(a) based on the same impacts addressed by FERC. A divided panel of the Second Circuit, exercising jurisdiction under a 2005 amendment to § 19 of the NGA authorizing federal courts of appeals to remand state CWA permitting actions (inter alia) that are “inconsistent with the Federal law governing such permit and [that] would prevent the construction” of an inter- state pipeline, 15 U.S.C. §717r(d)(3), upheld CTDEP’s decision. The questions presented are: 1. Whether the court below erred in applying the “inconsistent with the Federal law” standard under NGA § 19(d) without addressing the substantive CWA issue reserved by this Court in PUD No. 1, viz., whether a state can veto a FERC-licensed project through a CWA § 401 determination that conflicts with the FERC license. (a) ii 2. Whether the court below erred in failing to address the question whether CTDEP’s denial of a CWA § 401 certificate, based on seafloor and shell fishing impacts rather than on water quality, is “inconsistent with Federal law,” within the meaning of NGA § 19(d) and CWA § 401(a); and 3. Whether a state may withhold water quality certification under CWA § 401(a) based on impacts to an industry, or to the seafloor, in the absence of a showing that a “discharge” from the construction activity results in an impact on water quality. TABLE OF CONTENTS QUESTIONS PRESENTED ........................seeeee TABLE OF AUTHORITIESG. .................s00-ssssssseees INTEREST OF AMICI CURIAE ...............00000005 I icaiiatindadisniiianssennesenwaresereversecers I. The Court Should Grant the Writ to Ad- dress Important Substantive CWA Issues Reserved in PUD No. 1 that Are Presented by the Proper Interpretation of the “Inconsistent with Federal Law” Standard in New NGA § 19(q) ................. A. The Court Below Failed to Address the Question Left Open in PUD No. 1 Concerning a Conflict Between FERC Licensing and State CWA ERE SE aa 1. The Clean Water Act...................... 2. The Question Reserved in PUD ae lathe cc aetcaniiubteinitininnice 3. The Conflict Between FERC and Ie GF ee I ivttcissesteieciscccovscvess 5. The Court of Appeals’ Misinter- pretation of NGA § 19(d)................ B. The Court Below Failed to Address the Important Question Whether a State Permissibly May Deny CWA Certification Based on _ Environ- mental Impacts Unrelated to a “Discharge” that Will Have an Impact on Clean Water ....................... (iii) ~“ ore ..................... Energy Information Administration, Dep’t of Energy, Additions to Capacity on the U.S. Natural Gas Pipeline Network (July 2008), available at ; EIA, “Natural Gas Consumption by End Use (September 30, 2008), available at . The EIA reports that U.S. natural gas pipeline construc- tion activity has accelerated substantially in response to this growing demand, as well as to increasing production from new and shifting sources of supply such as shale and liquefied natural gas import terminals. See EIA, Additions to Capacity on the U.S. Natural Gas Pipeline Network: 2007 (July 2008), available at . Capacity additions to the grid totaled almost 14.9 billion cubic feet of daily deliverabilty for the 50 projects completed in 2007 — the largest in any year in EIA’s 10-year database of pipeline con- struction activity. Jd. at 1. Moreover, substantial additional capacity additions have been proposed in the next several years. EIA reports about 200 natural gas pipeline projects proposed for develop- ment between 2008 and 2010, accounting for over 10,100 miles of potential new natural gas pipeline. Id. at 14. With NGA § 19(d) as the sole remedy for a natural gas project sponsor whose FERC-approved project has been “vetoed” on parochial and arbitrary grounds, the Court should consider the impact on fu- ture investment decisions of letting this decision stand. Other state and federal agencies may well ex- ploit the Second Circuit’s lax approach to review un- der NGA § 19(d). The threat of a veto at the end of the long and costly process necessary to obtain fed- eral approval may discourage investment in the con- struction of critically needed gas transmission facili- 20 ties whenever those facilities involve construction in the waters of more than one state. Nor is the effect limited to coastal water construction projects; virtu- ally every interstate pipeline crosses navigable water subject to State CWA § 401 certification. In short, un- der the Second Circuit’s approach, the States’ dele- gated permitting authority under the CWA and other federal statutes threatens virtually every pipeline construction project. CONCLUSION The petition for a writ of certiorari should be granted. KEVIN B. BELFORD ANDREW SOTO AMERICAN GAS ASSOCIATION 400 N. Capitol St., NW Washington, D.C. 20001 (202) 824-7070 R. SKIP HORVATH PATRICIA JAGTIANI NATURAL GAS SUPPLY ASSOCIATION 805 15th Street, NW Suite 510 Washington, D.C. 20005 (202) 326-9300 THOMAS M. KILEY NORTHEAST GAS ASSOCIATION 75 Second Avenue Suite 510 Needham, MA 02494 (781) 455-6800 * Counsel! of Record Respectfully submitted, DONALD F. SANTA JOAN DRESKIN TIMM ABENDROTH * DAN REGAN INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA 10 G Street, NE Suite 700 Washington, DC 20002 (202) 2iG-5912 BARRY RUSSELL INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA 1201 15th Street, NW, Suite 300 Washington, D.C. 20005 (202) 857-4722 Counsel for Amici Curiae --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0231%3A4. Public record. Not legal advice.