Constitution Pipeline Company v. New York State Department of Environmental Conservation

Case Updates

The Second Circuit rejected Constitution Pipeline’s challenge to the New York State Department of Environmental Conservation’s denial of a permit to construct an interstate natural gas pipeline under Section 401 of the Clean Water Act.

The U.S. Chamber and a broad coalition of trade associations urged the U.S. Court of Appeals for the Second Circuit to overturn the New York Department of Environmental Conservation’s decision to stymie a natural gas pipeline project that had been approved by the Federal Energy Regulatory Commission (FERC).

The coalition amicus brief argued that although Section 401 of the Clean Water Act (CWA) gives individual states a limited role in the pipeline approval process established by Congress through the Natural Gas Act, Congress gave FERC the principal authority to determine whether a proposed pipeline is consistent with the “public convenience and necessity.” Allowing individual states to unilaterally veto FERC-approved projects for reasons that FERC has already considered and rejected, or for reasons unrelated to discharges regulated by the CWA, fundamentally undermines and upsets that balance. The brief also warned that allowing states to circumvent FERC pipeline approvals threatens vitally important infrastructure projects that provide abundant natural gas to businesses and consumers and benefit both the local and national economies and the environment.

The National Association of Manufacturers, Interstate Natural Gas Association of America, American Gas Association, American Petroleum Institute, American Chemistry Council, Natural Gas Supply Association, American Forest & Paper Association, and Process Gas Consumers Group joined the coalition in filing this brief with the U.S. Chamber.

Ryan C. Morris and Tobias S. Loss-Eaton of Sidley Austin LLP served as co-counsel for the amici.