The State Department of Environmental Conservation is filing an appeal of a federal agency's ruling that it missed a deadline to reject a permit for a natural gas pipeline from Pennsylvania through Western New York.
The DEC last week appealed to the U.S. Court of Appeals for the Second Circuit in New York City, after the Federal Energy Regulatory Commission refused to give the DEC a second chance to argue its case.
FERC ruled the DEC was 44 days late in 2017, when it denied a water quality certificate for National Fuel's 97-mile Northern Access Pipeline, which would carry fracked gas from northern Pennsylvania through Western New York, linking up with a Canadian pipeline under the Niagara River.
The route through Allegany, Cattaraugus and Erie counties crosses 192 creeks and streams.
National Fuel and its subsidiary, Empire Pipeline, requested the permit from the DEC on March 2, 2016. FERC contends that the federal Clean Water Act gave the DEC one year to act on the request, but the DEC didn't deny it until April 7, 2017.
However, the company and the DEC had agreed on Jan. 20, 2017, to revise the application date to April 8, 2016.
Last summer, FERC ruled the Clean Water Act doesn't authorize such an agreement. On April 2, it rejected the DEC's request for a rehearing.
That's why the DEC has gone to court, with the State Attorney General's Office claiming the FERC rulings were "illegal, unreasonable, arbitrary and capricious."
"DEC disagrees with FERC's decision that, once again, sides with the fossil fuel industry over protecting our environment," spokeswoman Maureen Wren said. "DEC's focus is always protecting our environment and water quality for all New Yorkers. While DEC is reviewing FERC’s misguided decision, DEC will continue to vigorously defend our decision and our authority to protect New York State’s water quality resources."
"The appeal was not unexpected," National Fuel spokeswoman Karen Merkel said.
National Fuel already has won a key case before the Second Circuit. On Feb. 5, that court threw out the DEC's denial of the water quality permit, saying the state agency didn't adequately explain its reasoning. That ruling didn't address whether the one-year deadline was met.
Pennsylvania has granted the project a water quality permit.
National Fuel said last month its current target date for opening the pipeline is 2022. When the much-delayed project was first unveiled in 2014, it was called "Northern Access 2016."