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
, 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rescinded that guidance.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

Still there?

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

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
, 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

legal battle comes at a time of fierce partisan
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
who is seen as supporting the bureaucratic impasse.

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.

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.

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