Constitution Pipeline is proposing to construct a pipeline to run 124 miles from Pennsylvania through Broome, Chenango, Delaware and Schoharie Counties in New York to deliver fracked natural gas to the New England market. On June 13, 2013, Constitution submitted an application for a Certificate of Public Convenience and Necessity (CPCN) to the Federal Energy Regulatory Commission (FERC). FERC issued a Final Environmental Impact Statement on October 24, 2014 and a CPCN on December 2, 2014.

Constitution quickly went to federal court to request an order granting immediate access to, and permanent rights-of-way over, the land of property owners who had refused access.  The property owners argued that the CPCN was not validly issued because Constitution had not first received a water quality certification from the New York State Department of Environmental Conservation (DEC) under § 401 of the Clean Water Act (CWA).  Under the CWA, an applicant for a federal license or permit “to conduct any activity including but not limited to construction or operation of facilities, which may result in any discharge into the navigable waters” is required to apply to the state for a water quality certification.

The CWA further provides that “No license or permit shall be granted until the certification required by this section has been obtained or has been waived . . . . No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be.”

FERC’s issuance of the CPCN was in flat contravention of this provision. The D. C. Court of Appeals ruled in a similar case that FERC may not act based on any certification the state might submit; rather, it has an obligation to determine that the specific certification “required by [section 401] has been obtained,” and without that certification, FERC lacks authority to issue a license. City of Tacoma v. FERC, 460 F.3d 53, 67 (D.C. Cir. 2006).

Constitution requested entry onto homeowners’ property even before the federal eminent domain process has been completed, known as a “quick take.” However, the Natural Gas Act does not authorize the immediate possession of property prior to the completion of eminent domain proceedings. In a federal condemnation proceeding, the federal government takes possession of property after an order of condemnation has been issued and a determination of just compensation has been made, not before.

At least one federal Court of Appeals has held that the Natural Gas Act, unlike other condemnation statutes, does not authorize quick-take powers. Other federal statutes, such as the Declaration of Taking Act and the Atomic Energy Act explicitly provide authority for taking possession of land prior to an order of condemnation and determination of just compensation. The court held, in the absence of a specific quick-take right conferred by Congress, “the NGA does not authorize quick-take power, nor can it be implied, because eminent domain statutes are strictly construed to exclude those rights not expressly granted.”

Notwithstanding these very strong arguments from property owners, U.S. District Judge Norman Mordue has begun granting Constitution its requested immediate access and permanent rights-of-way.  In the meantime, the issue of the water quality certification to be issued by DEC remains undecided.  A denial would invalidate the FERC approval of the CPCN. Also pending are two requests for rehearing at FERC, filed by Stop the Pipeline and Earth Justice.  FERC has yet to act on either one.

The Court of Appeals today upheld the authority of local governments to zone out hydraulic fracturing for natural gas, known as fracking. The zoning laws of two towns were before the Court, Middlefield and Dryden. Both towns had taken the same tack of banning fracking as a hazardous and undesirable land use under their zoning laws. I had the honor of arguing the case for Middlefield in defense of the Article 78 proceeding and declaratory judgment action brought by a landowner in Supreme Court. When the Middlefield and Dryden decisions were handed down three days apart in 2012 with the same ruling, I was confident they would be upheld throughout the appeals process.

What is remarkable is the consistency of the decisions in these two challenges in the Supreme Court, Appellate Division and Court of Appeals. The argument of the natural gas companies and landowners with leases was that the Oil, Gas and Solution Mining Law ("OGSML") gave DEC exclusive jurisdiction over the regualation of not only the operation, but also the location, of natural gas wells. But Court of Appeals prcedent did not and does not support that argument.

In the line of decisions running from Frew Run Gravel Prods. v. Town of Carroll, 71 NY2d 126 (1987) through Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668 (1996), the Court of Appeals has consistently held that state preemption clauses that expressly preempt regulation of the operation of an industry do not by implication preempt municipal authority to regulate the location of an industry. Local zoning authority can be preempted by the state only by explicit landguage and clear legislative intent. Both were lacking in the OGSML.

Although this is a great victory for the anti-fracking campaign, the future of fracking in New York still rests with the Governor.  A year ago, the administration appeared to have leaked a proposal allowing fracking in municipalities that wanted it and prohibiting it in municipalities that did not. In response to the initial decisions in Middlefield and Dryden in 2012, many of the towns along the Pennsylvania border adopted local laws expressly permitting fracking. This Court of Appeals decision opens the way for the Governor to carry out the leaked proposal.

The campaign against fracking must continue to be waged on two frontiers--at the local level to put in place local zoning law provisions banning fracking and treatment, transport and use of fracking wastes and at the state level to get a statewide ban from the Governor. In the meantime, this decision is a great and lasting victory for the land use powers of local governments, which will no doubt play an important role in many future battles. 



Beyond the pseudo "debate" about whether man-made climate change is underway is a much more serious debate about whether our carbon reduction targers are sufficiently stringent.  In the Summary for Policymakers prepared by Working Group III for the IPCC Fifth Assessment Report released in April,it was reported with "high confidence" that despite international efforts to reduce greenhouse gasses (GHG), they have continued to increase from 1970 to 2010 with a faster rate of increase toward the end of that period. The annual rate of increase from 1970 to 2000 was 1.3%, but from 2000 to 2010 was 2.2%.

Also reported with "high confidence" was that CO2 emissions from fossil fuel combustion and industrial processes contributed about 78 % of the total GHG emission increase from 1970 to 2010. Finally, the report concluded that without additional efforts beyond those in place today, global mean surface temperature would rise by 2100 to a level from 3.7° C to 4.8° C, a level all agreed would be catastrophic.

To avert these consequences, the summary states with high confidence that keeping global mean surface temperature rise less than 2° C relative to pre-industrial levels will require keeping atmospheric CO2 concentrations under 450 ppm. Staying under that limit by 2100 would require a 40% to 70% reduction in GHG by 2050 over the level in 2010. The Summary states with high confidence that the Cancun Pledges for reductions in GHG by 2020 are inadequate.

If that Summary is not sufficiently dire, turn to, which bases its international campaign to reach 350 ppm at least in part on this quote from James Hansen, the former head of the Goddard Institute for Space Studies: "If humanity wishes to preserve a planet similar to that on which civilization developed and to which life on Earth is adapted, paleoclimate evidence and ongoing climate change suggest that CO2 will need to be reduced from [current levels] to at most 350 ppm."

In December 2013, Hansen published an article with 16 coauthors stating flatly that "a 2°C warming would have major deleterious consequences.... Global warming of 2°C would be well outside the Holocene range and far into the dangerous range." To return to 350 ppm by the end of this century, Hanson and his coauthors estimate we will need a 6% per year reduction in carbon emissions beginning in 2013, assuming substantial reforestaton to absorb carbon. Hansen estimates that delaying fossil fuel emission reductions until 2020, assuming 2%/year emissions growth in the meantime, would cause CO2 to remain above 350 ppm until 2300.

The policy implications of this debate are enormous.  The IPCC meeting in Paris this Fall is not likely to take a more aggressive tack than the Working Group III Summary reported above.  Hopefully as the science becomes clearer based on observation of current trends and less on models, the climate change deniers will lose influence and serious shifts to alternative sources of energy will receive the support they need. 


Given the impacts of climate change estimated to occur this century, one must question whether we can afford to delay or stop the implementation of alternative energy facilities to save a viewshed or a particular species. If one takes seriously the estimates of sea rise, the effort to save a coastal view could be pointless if the coast itself will disappear.  So too, when estimates of annual loss of species due to climate change range in the thousands, should a critical alternative energy facility be halted to save one species?

These issues are highlighted by the continuing litigation to stop the Cape Wind project in Nantucket Harbor. According to the project sponsors, the recent decision in Federal Court turning down yet another challenge was the latest of twenty-six court decisions favoring the project in a history stretching back thirteen years.

The Cape Wind project would develop a wind farm of 130 turbines over 24 square miles of federal waters in Nantucket Sound, five miles off Cape Code and fifteen miles from Nantucket. The latest decision recites the litigation history.  Cape Wind applied for a permit in 2001. In 2002, the U.S. Army Corps of Engineers 
granted a permit for a meteorological tower to gather data, which was immediately challenged in court. In 2005, Massachusetts approved the construction of two undersea electric transmission cables and in 2007 approved the final environmental impact report.  Both were unsuccessfully challenged. In 2010, the federal government approved the project and issued a lease to operate the facility in federal waters.
In the latest decision, Town of Barnstable v. Berwick, the court noted, "Both sides in the dispute claim the mantle of environmentalism, although for present purposes plaintiffs have doffed their green garb and draped themselves in the banner of free-market economics." Despite the plaintiffs' somewhat tortured argument on electricity rate setting, the central issue was whether the supremacy clause of the Eleventh Amendment barred the suit against Massachusetts. The court held it did.

In a news release posted by Cape Wind, George Bachrach, President of the Environmental Leagues of Massachusetts, is quoted as saying, “It is obvious that project opponents have just been using the courts to delay this important project and to try to disrupt their efforts at securing financing; it is gratifying to see, for the 26th  time, their lawsuit get rejected.” In his final footnote in the Barnstable case, the judge noted in an obvious reference to the long litigation history, "There comes a point at which the right to litigate can become a vexatious abuse of the democratic process."

Although the Cape Wind saga may be an extreme example, the environmental bar and their clients must wrestle with the difficult question of whether all exceptional viewsheds and every threatened or endangered species must be preserved at the cost of an important alternative energy facility. Every person has a right to his or her day in court to determine whether applicable laws have been violated, but there must be a balancing of environmental priorities when deciding whether to litigate. It is difficult to imagine more dire environmental impacts than those said to be associated with climate change.  How to address this shifting balance through our environmental laws will be a major challenge over the next few decades.