Another chapter in the book of regulatory weirdness is being written in federal court regarding the power of the Federal Energy Regulatory Commission (FERC) to site natural gas pipelines.
In an earlier episode, we read how Obama-era federal guidance on climate change is still operating in the U.S. court system, even after the Trump administration rescinded that guidance. In this episode we discover how new life was given to a 124-mile proposed Constitution pipeline from Pennsylvania to New York thanks to an appeals court decision about a different project on the other side of the country.
The issue on the West Coast concerned hydropower dams, and FERC oversees both natural gas and hydropower infrastructure. It seems the states of California and Oregon and the large utility PacifiCorp were engaged in a conspiracy of sorts to place any state-level decision on dam decommissioning into a legal limbo that could last forever unless courts intervene.
The states got away with it by asking PacifiCorp to continually defer, for almost a decade, the Clean Water Act’s statutory deadline to convey a state water-quality certification by withdrawing and then resubmitting a water-quality certification each year. FERC cannot issue a federal license until state water certification takes place, which has mired the project in a kind of bureaucratic Groundhog Day situation.
In January, the U.S. Appeals Court for the D.C. Circuit decided in the case Hoopa Valley Tribe v. FERC that it had finally had enough, stating that the one-year deadline must be adhered to. This opened the door for FERC to look again at the Constitution pipeline, because basically the New York Department of Environmental Conservation (DEC) behaved in a similar manner before ultimately denying Constitution’s application in April 2016. FERC had rejected rehearing Constitution’s request for a permit until the Hoopa Valley case. But on Feb. 28, it told the D.C. Circuit it will now reconsider Constitution’s request.
The legal battle comes at a time of fierce partisan agitation and bad-mouthing over natural gas infrastructure. President Trump and Energy Secretary Rick Perry have both verbally tangled with Democratic leaders like New York Governor Andrew Cuomo, who is seen as supporting the bureaucratic impasse.
Environmental groups are happy with the state-level blockages, viewing it as an essential tactic in their war against White House Republicans and developers over fossil-fuel infrastructure.
Caught in the middle are energy consumers in New York and New England, and Democrats like Cuomo, who must try and balance the idealistic needs of his leftist eco-base with the pragmatic needs of energy users and homeowners throughout his state.
While the story over pipeline siting can seem pretty dry and inconsequential, it has significantly impacted New Yorkers and New Englanders. New England, as a virtue of its geographic location, is completely dependent on Albany’s permission for pipelines to traverse New York territory on their way to its consumers. Electricity prices in New England are the highest in the continental U.S., largely as a result of infrastructure and supply constraints.
ConEdison, the New York utility, announced last month that it would put an indefinite halt to all future natural gas hook-ups in Westchester County, north of New York City, on March 15, on the grounds that demand has outpaced supply. A moratorium is the only way ConEdison can ensure supplies to its current customers. More moratoria are likely in the coming years if new supplies aren’t made available.
In addition to hurting consumers, curtailing natural gas supplies makes citizens use dirtier sources than gas for heat and light – because not every consumer can afford to be green. Recent testimony before the New York Public Service Commission by the environmental group EDF found that natural gas price spikes during the brutal cold spells of 2018 led to more fuel oil being burned for power generation in New Jersey, Pennsylvania and New England.
For those keeping score, fuel oil emits double the carbon dioxide and many times the sulfur and particulates matter as natural gas, so the idea that being against pipeline capacity can increase harmful emissions instead of decreasing them is an interesting plot twist.
Stay tuned for more.