Breaking News: Northern Access Appeals NYSDEC Denial of WQC

As anticipated, National Fuel Gas Supply Corporation and Empire Pipeline, Inc. (National Fuel) appealed the denial of a Water Quality Certificate (WQC) by the New York State Department of Environmental Conservation (NYSDEC) for its Northern Access Project, taking the dispute to the Second Circuit Court of Appeals in New York. Based on a similar appeal by Constitution, resolution of this matter could be one-year away, and will not likely be directly impacted by earlier rulings related to Constitution and Millennium Pipelines' appeals.

The notice of appeal is very short, but does reveal a key fact about the basis for the appeal.  National Fuel states that it is appealing the decision under "Section 19(d) of the Natural Gas Act, 15 U.S.C. § 717r(d)(1)." Subsection (d)(1) governs appeals over the issuance, conditioning, or denial of any federal permit and grants exclusive jurisdiction in the Court of Appeals where the facility is located, which in this case would be the Second Circuit. The notice of appeal does not cite to subsection (d)(2), which concerns appeals that assert the agency has failed to act on an application, which according to that section must be appealed to the District of Columbia Circuit. Therefore, although National Fuel does state in a footnote that it has asserted before FERC that the NYSDEC failed to act by not issuing its decision by October 25, 2016, National Fuel appears to have chosen to challenge the denial of the WQC on substantive grounds rather than asserting that the NYSDEC has waived its right to issue a WQC.  

The notice of appeal also does not explicitly request expedited review of the NYSDEC decision, although the statute itself does require the court to set any appeal for expedited consideration. What exactly expedited consideration means to the Second Circuit, however, is open to question. Constitution filed an almost identical notice of appeal for review of its WQC decision on May 18, 2016 and formally requested expedited consideration on May 19, 2016. The Second Circuit "granted" that motion on May 24, 2016, but set a briefing schedule that ended almost 5 months later on October 17, 2016, with oral argument taking place almost 6 months later on November 16, 2016. Here we sit almost one-year later and Constitution still does not have a decision on its "expedited" appeal. Obviously such a lengthy process would not be a welcome result for National Fuel. 

There are currently three appeals of Section 401 WQC issues that remain pending in various courts. In prior analyses, we've discussed the important distinctions of Millennium's CPV Lateral appeal  to the DC Circuit and Williams' Constitution appeal of the denial and waiver of its WQC before the Second Circuit. While similar topically, the potential impact of a ruling in any one case, will likely have limited precedent on future rulings, primarily due to the fact-specific nature of each case. For example, the basis for Constitution and Northern Access' denials is completely different. That is, in Constitution the NYSDEC claimed to lack information, but in Northern Access it claimed that its information proved there would be water quality violations (i.e., National Fuel refused to use trenchless crossings). Finally, in the case of Millennium, the NYSDEC has yet to make a ruling, so there the issue primarily concerns whether the NYSDEC waived it right to rule on the WQC which would mean that a NYSDEC WQC is not required for construction of the Project.