May 18, 2016
On Friday April 22, (Earth Day) the New York State Department of Environmental Conservation (DEC) denied the 401 Water Quality Certification for the proposed Constitution Pipeline, permanently blocking this 124-mile pipeline from construction. The pipeline was to connect the fracking fields of Susquehanna County, Pennsylvania with planned natural gas export infrastructure beginning in Schoharie, New York. As proposed, the Constitution Pipeline would have carved a 125-foot wide scar along the western slope of the Catskills, plowing through 277 stream crossings, clear-cutting more than 700,000 trees and destroying more than 90 acres of wetlands.
In spite of vocal public outcry and strong criticism from New York regulators, the Federal Energy Regulatory Commission (FERC) approved the pipeline in December of 2014 and allowed eminent domain proceedings to commence. The only remaining authorization required to begin construction was the New York State Department of Environmental Conservation 401 water quality certification, an approval meant to ensure that the pipeline’s hundreds of at grade water crossings comply with the Clean Water Act. It was also a certification that was standardly granted. But based upon a long history of serious water quality violations with other ill-conceived pipeline proposals, the DEC prolonged the approval process for more than 18 months while it deliberated over how to mitigate an inherently problematic pipeline with unavoidable impacts.
Because the Williams company could only clear the 700,000 trees obstructing the pipeline route between October 1st and March 31st (to comply with the Migratory bird act that protects the breeding requirements of birds and bats) they grew impatient as they saw their 2016 construction window close. At the end of January, Williams petitioned the FERC to allow tree clearing, despite the fact that New York still had not given the proper water quality certification. The Sierra Club, Attorney General Schneiderman and our environmental allies objected with filings of our own. On January 29, 2016, FERC, in a king Solomon-like-ruling, split the baby and gave the pipeline company permission to cut down trees along the 25 mile Pennsylvania section of the pipeline route, but temporarily held off on permission to take the chainsaws to New York trees. This partial victory was bittersweet as the company’s logging crews took to the forests of unwilling land owners in Pennsylvania and put unfair pressure on New York’s DEC to approve a project that seemed fated to move forward. It would appear now that a replanting effort should be ordered as mitigation for this wasteful act.
Of particular concern is the Holleran family’s North Harford Maple Syrup Farm, in New Milford, Pennsylvania. The tree felling was poised to obliterate the core of their business - 1,670 linear feet through their sugar bush that at the time was outfitted with collection lines for syrup production. Many supporters of the Holleran family gathered daily at the site where the cutting was to take place. At various times logging crews and Williams representatives tried to access the property only to be turned away by the peaceful crowd of resisters. For weeks the chainsaws were held at bay until the lawsuits could be resolved. But in the end a federal court ruled that the Hollerans had to yield to the company’s right of eminent domain and, under heavily armed guard, their maple forest was cleared within a matter of days.As tragic as the outcome was, the Hollerans' plight garnered tremendous national media coverage and stoked public uproar over the FERC’s deference to corporate greed over true public need. It is always difficult to gauge the impact that these principled stands have on regulators, especially with such crushing losses – but the DEC’s denial of the 401 certificate repeatedly referenced the loss of old growth trees and forest cover along riparian areas, to the point that it seemed like they too were sending a message to the FERC.
Governor Cuomo's rejection of the Constitution Pipeline could represent a turning of the tide, where states across the nation that have been pressured into accepting harmful gas infrastructure projects by the Federal Energy Regulatory Commission (FERC) may now feel emboldened to push back. Cuomo’s leadership could inspire a domino effect of related pipeline rejections as other states begin to put the protection of water and our climate before flawed energy projects that do not serve the public interest.
In the past year, Cuomo finalized the High Volume Fracking Ban, vetoed the Port Ambrose LNG facility, further delayed approvals for the Seneca Lake gas storage facility and called for a halt to construction to the Spectra AIM pipeline due to its dangerous proximity to the Indian Point Nuclear power plant (a call of Cuomo’s that the FERC almost immediately rejected). In advance of the Constitution pipeline denial, the developers of the Northeast Energy Direct pipeline voluntarily canceled their own plans to construct a parallel pipeline knowing they no longer stood a chance at DEC approval. The Constitution decision could reflect the Governor’s growing commitment to addressing climate change and an emerging willingness to push back against federal overreach.
But something should be said for the thousands of citizen activists and impacted landowners who, through four years of sacrifice and grassroots organizing, created the political space for this decision to be made. If ever there was an antidote to the broken FERC approval process it is relentless citizen participation and collaboration that holds decision makers accountable.
It is this same grassroots activism and increasing determination of every day New Yorkers to assert - and insert - themselves into the debate when the public process is clearly broken that may be necessary to thwart the continuing assaults to human rights and the planet. Over 538 citizens have been arrested at the gates of the Crestwood Seneca Lake gas storage facility; dozens of Westchester County residents have lain down before earth moving equipment in defiance of the construction of the AIM pipeline - and as we move into spring there will be more direct actions blocking this new wave of fossil fuel infrastructure. On May 14th hundreds of activists will be converging on the Port of Albany crude oil transloading facility to physically stop the “bomb trains” where anemic federal regulations and our leaders have failed.
The Sierra Club has traditionally been the standard bearer for advocacy and legal defense of the environment. But our venerable brand that has endured since 1892-- has not been sufficiently engaged in the fight outside of legal propriety. As we see the increasing urgency for us to stave off the worst aspects of our climate catastrophe, working within broken legal frameworks may no longer be enough to avert the real crisis.