Albany Update: Spring 2017

 

 

On April 7, 2017, the Cuomo administration blocked construction of the half-billion-dollar Northern Access natural gas pipeline on the ground that the 97-mile-long infrastructure project would “materially interfere with or jeopardize the biological integrity and best usages of affected water bodies and wetlands.” Going through NY’s Alleghany, Cattaraugus and Erie counties, the pipeline would have crossed 192 streams and impact 73 acres of state and federal wetlands, endangering a number of critical species, including trout and eastern hellbender — a state-listed amphibian species of concern.

 

Such an unexpected denial of what is usually a routine ministerial approval by NY’s Department of Environmental Conservation (DEC) would have sent a shock wave through industry and activist circles alike had not the agency and Cuomo denied a similar pipeline just one year earlier.

 

The Federal Energy Regulatory Commission (FERC) was dumbfounded in 2016 when the DEC denied the 401 Water Quality Certificate for the Constitution pipeline — a 124-mile pipeline that also connected the frack fields of Pennsylvania to export markets with only the forest, farmlands, streams and wetlands of New York in the way.

 

The water quality certification denials for the two pipelines together represent a precedent that could be a strong counter to Trump’s anti-environmental agenda, which seeks to lift all legal barriers to new fossil fuel infrastructure development.

 

But even decades before Trump, the FERC has been permitting pipelines with a permissiveness that has almost never seen an application denied, always giving energy companies the eminent domain land rights to take what they want. Traditionally, relevant state regulators have helplessly stood by, giving their tacit approval for what seemed largely outside their control, regardless of whether a massive infrastructure project appeared to be needed or not.

 

The concept of “need” is a foundational requirement of FERC approval — but in execution has become a bewildering tautology. By current approval standards, a pipeline is deemed to meet the public need requirement if a company can demonstrate that it has attracted sufficient investment to build the project.

 

What the general public truly needs in the context of a massive pipeline project is often irrelevant in this circular logic — where the export plans of a developer may be counter to the interests of those living between point A and point B. At times, it would appear the “needs” of New Yorkers would be better served if our regulators placed greater value on the adage, “True affluence is not needing anything.” 

 

It would be a mistake, however, to think that the Cuomo administration is using the 401 Water Quality Certification process, as industry reps have alleged, to block all natural gas infrastructure. It’s true that the governor’s January 2017 policy book pronounced, “Now that New York has built a foundation for the renewable energy system of the future, the state must double down by investing in the fight against dirty fossil fuels and fracked gas from neighboring states to achieve the goals outlined in the Governor’s Clean Energy Standard.” But the governor has since backtracked when pressured, suggesting natural gas will continue to be an important “bridge fuel” and that New York is still going to need to make some allowances for new infrastructure — if indeed it is to meet the demands of New Yorkers.

 

Climate advocates and industry officials alike still want to politicize the recent pipeline denials as being solely about natural gas — but in the end, it may simply be about protecting water. The DEC effectively and legitimately used the 401 process to stop the Constitution and Northern Access pipelines because the water impacts would have been egregious. This is not conjecture — there is a long and tragic history to support such claims.

 

In 1996, a 401 approval for the similarly sited Iroquois pipeline led to criminal violations of the Clean Water Act and millions of dollars in fines. A decade later, the construction of the Millennium pipeline resulted in the same catastrophic erosion events and negligent destruction of aquatic habitats. State regulators once again levied fines and hundreds of enforcement actions as they sought to repair the wanton destruction of New York’s water resources at the hands of pipeline developers.

 

With several decades of institutional memory and an explosion of new pipeline proposals, New York’s precaution is justified that it will hold up in the courts. But these first-of-their-kind denials have not meant a rampant use of the 401 Water Quality Certification process to deny other natural gas infrastructure proposals. In the past four months, the DEC has approved several major projects, including the Dominion New Market and Atlantic Bridge projects, which connect a vast new fracked-gas export pipeline system from Pennsylvania to Nova Scotia.

 

While both projects possessed troubling climate narratives — they did not pose the same kinds of threats to water resources since they either followed existing pipeline rights of way or employed less intrusive construction techniques. If DEC were to deny these other certifications based upon the Clean Water Act, they would risk labeling all their determinations as capricious. This notion is frustrating to climate activists that want the Cuomo administration to take greater risks with the state’s few jurisdictional tools to stop the fracking infrastructure onslaught.

 

A frustrated natural gas industry is also looking at the state’s limited powers — but is actively pushing the Trump administration to override the state’s delegated authority and give it back to the Army Corps of Engineers — which would presumably rubber-stamp all previous and future water quality certifications. This request is entirely in line with efforts already underway by the Trump administration to undermine the nation’s clean water protection laws — though the legality of such roll-backs and preemptions is still in question.

 

As New York’s climate activists remain laser-focused on opposing natural gas infrastructure expansion, it may be wise to keep in mind the erosion of the Clean Water Rule and other wetland protections that thus far have proven to be a more effective barricade to pipeline development than other more direct approaches.

 

As a golf course builder, the protection of wetlands and streams in New York frustrated Donald Trump as these critical environmental elements stood in the way of his parking lots, clubhouses and sand traps. The animosity he felt for these natural features that filter water, attenuate floods and support biodiversity has followed him to the White House, where he is poised to undo recently enacted protections that resolved more than a decade of regressive judicial decisions regarding wetlands. 

 

On January 9, 2001, in Solid Waste Agency of Northern Cook County v. United States, (SWANCC), 531 U.S. 159 (2001), the U.S. Supreme Court decided by a vote of 5–4 that the US Army Corps of Engineers (the Corps) did not have authority under Section 404 (the dredged and fill material permit program) of the Clean Water Act to assert jurisdiction over wetlands that were considered waters of the US solely due to their use by migratory birds. 

 

Prior to the SWANCC decision, the Corps asserted comprehensive regulatory jurisdiction over activities that threaten wetlands. After the SWANCC decision, the Corps limited the waters over which it asserts jurisdiction to “waters of the United States,” defined as tidal, interstate and navigable water bodies and their adjacent wetlands. Wetlands are considered to be adjacent and subject to federal jurisdiction if they’re connected by surface water to waters of the US.

 

Wetlands that are not connected by surface water to waters of the US — so-called isolated wetlands — were no longer afforded federal protection. In New York, that could be as much as 60% of our wetlands. Many of the wetlands and intermittent streams potentially impacted by the proposed Constitution and Northern Access pipelines fall in this ambiguous area of protection.

 

The New York Wetland Protection Act (ECL Article 24) establishes jurisdiction for DEC to regulate land use in wetlands that are on the state wetlands map. DEC protects mapped wetlands that are 12.4 acres or larger, or wetlands that are of unusual local importance. New York’s wetland protection program overlaps with the federal program for wetlands that are 12.4 acres or larger and in limited circumstances for smaller wetlands as well. Up until now, wetlands that fell below the 12.4-acre threshold were nearly universally regulated by the federal program. In the aftermath of the SWANCC decision, however, so-called isolated wetlands that fall below the 12.4-acre threshold are only protected in those limited instances when DEC has found that the wetland is of unusual local importance. 

 

In May 2015, under the direction of the Obama administration, the EPA released a new rule on the definition of “waters of the United States” (WOTUS). It clarified that, indeed, isolated wetlands and intermittent headwater streams are under the regulatory control of the federal government. This ruling filled the gaping legal hole in wetland protection in New York. On February 28, 2017, however, President Trump signed an executive order rolling back Obama’s Clean Water Rule under the Clean Water Act, once again endangering huge swaths of NY’s wetlands and suggesting even greater cutbacks in enforcement by the Army Corps of Engineers. 

 

Currently, there is a bill before the legislature, A.6282, that would strengthen and improve New York’s freshwater wetland protection law in the wake of the Trump administration rollbacks. The bill amends the definition section of the law to allow the DEC to protect smaller wetlands up to one acre, down from the current 12.4-acre threshold. The bill also reforms the use and effectiveness of New York’s freshwater wetland maps.

 

 

But political pressure from land developers has prevented the DEC from releasing these maps to the public — essentially blocking them from state protection. This bill would change the definition of “wetland” so that wetlands meeting the environmental criteria in the law would be subject to regulation without the requirement that they also appear on DEC’s wetland maps. 

 

While this legislation has passed the Assembly, it still has to face the hurdles of the Republican-controlled Senate, which has been historically hostile to protecting wetlands. Both Governor Andrew Cuomo and Attorney General Schneiderman have been vocal in their opposition to Trump’s intended assault on the Clean Water Act. But for all their saber rattling and podium pounding, there has been little acknowledgement of what the state could be doing to strengthen the weaknesses in NY’s own regulations and water protection programs.

 

For starters, the DEC could finally release the 50,000 acres of wetland maps it has been sitting on. Nothing is preventing the state from assuming protective authority over these new wetlands save the political pressure from developers — who count Trump within their inner circle. New York should be preparing for an onslaught of fossil fuel infrastructure proposals coupled with the regulatory rollbacks to go with them. Failure on our part to proactively strengthen our protection of water may hurt us in the long run.