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.