Amicus Curiae Brief — Islander East East Pipeline Pipeline Co., LLC v. McCarthy (No. 08-367)

FILED

OCT 2 1 2008

4 OFFICE OF THE CLERK

In THE

Supreme Court of the United States

ISLANDER East PIPELINE Company, L.L.C.

Petitioner,

V.

Gina McCartuy, COMMISSIONER OF THE

S?TATE 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

Brier or Amicus CurRItAE THE COUNTY OF

SuFFOLK, NEw York IN Support OF PETITION

FOR A WRIT OF CERTIORARI

CHRISTOPHER JEFFREYS

Attorney for Amicus Curiae County of Suffolk

CHRISTINE Ma.ari

SUFFOLK COUNTY ATTORNEY

100 VETERANS MEMORIAL HIGHWAY

HAuPPAUGE, New York 11788

(631) 853-4049

OcTrorer 21, 2008

Ecno Appeneate Press. 30 W. Park Ave.. Lone Beacu, NY (516) 432-3601

16364

Table of Contents

Page No.

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Statement of Identity of Amicus Curiae, Interest in

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Table of Authorities

Page No.

Cases

Alaska Dep't. of Envir. —

Conser. uv. EPA, 540 U.S. 461 (2004) ............ccccccccccccscccees 6

Cleveland Elec. Illuminating

Co. v. EPA, 572 F.2d 1150 (6% Cir. 1978) ....................... 6

Islander East Pipeline

Co., LLC v. McCarthy,

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National Fuel Gas Supply .

Corp. v. Pub. Serv. Comm'n,

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Statutes

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Energy Policy Act of 2005,

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Suffolk County Charter $ C2-3 ............cccccccscosccccsccccsccscese 1

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Statement of Identity of Amicus Curiae,

Interest in Case

Amicus Curiae in this matter is the County of Suffolk

(“Suffolk”), a political subdivision of the State of New

York, located on the eastern portion of Long Island.

Suffolk is one of the twelve original counties of New

York State and comprises 1000 square miles of the

eastern two-thirds of Long Island, extending

approximately 95 miles from its western border to the

eastern tip of Long Island. Suffolk is bounded on the

south by the Atlantic Ocean and on the north by Long

Island Sound. At Suffolk County's widest point, the

distance from Long Island Sound to the southern

shore is 26 miles.

The Suffolk County Charter providing for self-

government, was first adopted by the New York State

Legislature in 1958 (c. 278, L. 1958) and was ratified

by Suffolk County voters in 1960. In 1970, Suffolk

County changed its governing body from a Board of

Supervisors to a County Lej:: ature, consisting of

eighteen legislators, with a County Executive elected

at large. Suffolk County Charter §§ C2-1, C2-3, & C3-1.

Suffolk is interested in this case because the proposed

pipeline will bring significant environmental,

economic, and operational benefits to Suffolk, Long

Island, and its surrounding regions.

The authority of the Suffolk to file this Amicus Curiae

brief is derived from Rule 37.2 of the Supreme Court

Rules, as all parties to this matter have consented to

the filing of this brief. Their consents have been filed

with this Court.

. Argument

The Connecticut Department of Environmental

Protection (“CTDEP”) denied the water quality

certification required under § 401(a) of the Clean

Water Act, 33 U.S.C. § 1341(a), to applicant Islander

East Pipeline Company, L.L.C. (“Islander East”) for a

proposed interstate natural gas pipeline project that

will supply natural gas to growing energy markets

Long Island, New York, New York City, and

Connecticut. Upon information and belief, Long

Island is expected to receive, at least initially, most of

the natural gas generated by the project. Although

Islander East has received final authorization from

the Federal Energy Regulatory Commission (“FERC”)

for the pipeline, the CTDEP’s § 401 certification is a

prerequisite to its construction of the proposed

pipeline. 33 U.S.C. § 1341; see also Islander East

Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 144 (2d

Cir. 2008).

In addition to the Clean Water Act, the Natural Gas

Act of 1938 is also applicable to this matter. Jd., 525

F.3d at 143. The Na ural Gas Act requires that “any

party seeking to construct ... a facility for the

transportation or sale of natural gas in interstate

commerce must secure ‘a certificate of public

convenience and necessity’ from FERC.” ZId.; 15

U.S.C. § 717f{c)1A). “Congress placed authority

regarding the location of interstate pipelines. . .in the

FERC, a federal body that can make choices in the

interests of energy consumers nationally.” National

Fuel Gas Supply Corp. v. Pub. Serv. Comm’n, 894

F.2d 571, 579 (2d Cir. 1990).

This case raises an important question about whether

a state agency in one state may use its power to grant

or deny water quality certifications under § 401 of the

Clean Water Act in an arbitrary manner to block an

interstate pipeline that has received a FERC

certificate to serve the pressing energy needs of

another state. Congress amended the Natural Gas

Act in 2005 to provide federal courts of appeal with

the power to review and remand decisions by state

agencies that use the powers granted to them by

federal laws like the Clean Water Act to block

interstate pipelines when an agency decision, like

CTDEP’s, is inconsistent with federal law. See Energy

Policy Act of 2005, Pub. L. No. 109-58, § 313(b).

CTDEP’s denial has a direct and serious impact on

Suffolk, and Suffolk urges this Court to grant

Islander East’s petition for certiorari to make it clear

that CTDEP’s actions are inconsistent with federal

law and should be reversed.

The proposed Islander East pipeline is a 44.8 mile

long, 24-inch wide pipeline that will interconnect with

an existing pipeline in Connecticut and transport

much needed natural gas to Suffolk County, New

York, crossing 22.6 miles the Long Island Sound en

route. Islander East, 525 F.3d at 146. The pipeline

will bring significant economic and operational

benefits to these regions, including increased gas

supply alternatives and competition. Additionally, the

Islander East pipeline will help the environment by

improving air quality though the greater use of

natural gas in electric power generation.

The proposed Islander East pipeline will fully

integrate the natural gas transmission systems

between New England and New York, enhancing

*

access to virtually every major supply basin in North

America, and securing a dependable supply of energy

from diverse sources.

The Islander East pipeline is a cost-effective and

energy-efficient way to deliver much needed natural

gas to the Connecticut, Long Island, and New York

City markets.

Demand for natural gas is growing at a greater rate

in these markets than anywhere else in the Country,

and the demand for natural gas is expected to

continue to grow as more homes convert to natural

gas and more natural gas-fired plants are built to

generate electricity for these regions. Even with

implementation of energy conservation measures,

demand for natural gas on Long Island has been

growing at the rate of eight percent a year, well above

the national average.

With nearly three-quarters of all new Long Island

homes being built for natural gas, this demand will

continue to rise.

Planning also is underway for two natural gas

generating plants in Suffolk County, which would use

gas supplied by the Islander East pipeline. New

supplies can also be used by older,_existing facilities.

in the area that are expected to convert to natural gas

in the near future.

The New York Independent System Operator, a not-

for-profit corporation that administers New York

State's wholesale energy market, has determined that

Long Island, due to its unique geography, must have

98 percent of its peak demand located "on island” to

ensure reliable supplies. Therefore, it is clear that

Long Island's unique geography demands a home-

based energy supply and the generating facilities

need natural gas to operate.

The Islander East pipeline will deliver high-pressure

natural gas to meet the load from new, efficient, gas-

fired electric generating plants as well as from the

older, existing facilities that may convert to natural

gas, and the pipeline will supply enough natural gas

to heat 600,000 homes and meet local distribution

company growth.

Natural gas is a clean and affordable way to heat

homes, businesses, and fuel power plants. As the

cleanest burning fossil fuel, natural gas promotes air

and water quality when used in place of other fossil

energy sources. When natural gas is burned, virtually

-no atmospheric emissions of sulfur dioxide or small

particulate matter are released and the amount of

nitrogen oxide produced is significantly less than

other fuels.

Increased use of natural gas can help address

environmental_concerns by reducing air emissions,

making natural gas the environmental fossil fuel of

choice. Studies show a significant reduction of sulfur

dioxide emissions as a result of the clean generation

of electricity on Long Island by the gas Islander East

will provide.! The reduction will be roughly 800-

' Sulfur dioxide, also known as SO2, causes a wide variety of health and

environmental impacts because of the way it reacts with other substances

in the au. Particularly sensitive groups wnclude people with asthma who

arc active outdoors and children, the clderly, and people with heart or lung

wie

400,000 tons, which translates into a reduction of

nitrogen oxides emissions by approximately 10,000-

31,500 tons, depending on the actual amount of new

combined cycle generation built on Long Island.?

It is vitally important to Suffolk that pipelines such

as this be constructed and maintained, despite the

State of Connecticut’s arbitrary and capricious denial

of the needed Clean Water Act/water quality

certification of the project.

To that end, Suffolk urges this Court to grant

Islander East’s petition for certiorari, and to make it

clear that, when an agency’s Clean Water Act

decision would thwart the jurisdiction and power of

FERC to permit natural gas pipelines, the legality of

that decision must be determined in light of two

laws—the Clean Water Act and the Natural Gas Act.

These laws must be read together, in tandem, to

ensure that one state does not set arbitrary standards

to block projects like Islander East for reasons that

are inconsistent with both the Clean Water Act and

Natural Gas Act, and which prevent FERC from

properly administering the Natural Gas Act in the

interests of consumers nationwide. This Court should

disease. www.epa.gov/air/urbanair/so2/hithl html (last updated May 9,

2008). Particularly sensitive groups include people with asthma who arc

active outdoors and children, the elderly, and people with heart or lung

disease. /d.; Cleveland Elec. Illuminating Co. v. EPA, 572 F.2d 1150,

1154-1155 (6™ Cir. 1978).

? Nitrogen oxide, also known as NOx, is the generic term for a group of

highly reactive gases, all of which contain nitrogen and oxygen in varying

amounts. Many of the nitrogen oxides are colorless and odorless.

However, one common pollutant, nitrogen dioxide, along with particles in

the air can often be seen as a reddish-brown layer over many urban areas.

www.epa.gov/air/urbanair/nox/ (last updated May 9, 2008); Alaska Dep't

of Envir. Conser. v. EPA, 540 U.S. 461, 470 (2004) (footnote 1).

a

grant certiorari to-explain that state agencies cannot

interpret their power under Clean Water Act is such

a broad fashion that they undermine the power that

Congress gave FERC to certificate needed pipelines

and determine their route and construction methods.

Conclusion

Based upon the above, Amicus County of Suffolk urges

the Court to grant the Petition for a Writ of Certiorari

of Islander East Pipeline Company, L.L.C. in this

matter. !

/ i, 7 | - J

BY: Christopher d¢ffreys

Bar ID No. CJ9864

Attorney for Amicus Curiae

Christine Malafi

Suffolk County Attorney

County of Suffolk

100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, NY 11788

631.853.5677 (phone)

CERTIFICATE OF COMPLIANCE

No. 08-367

Islander East Pipeline Company, L.L.C.,

Petitioner,

Vv.

Gina McCarthy, Commissioner of the State of

Connecticut

Department of Environmental! Protection

and

State of Connecticut Department of Environmental

Protection,

Respondents.

As required by Supreme Court Rule 33.1(h), I certify

that the Brief of Amicus Curiae the County of Suffolk,

New York in Support of the Petition for a Writ of

Certiorari contains 1,766 words, not excluding the

parts of the brief that are exempted by Supreme

Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on October 21, 2008

BY: ChfistophetdJefireys

Bar ID No. CJ9864

Attorney for Amicus Curiae

Christine Malafi

Suffolk County Attorney

County of Suffolk

100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, NY 11788

631.853.5677 (phone)

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