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ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
BARBARA D. UNDERWOOD
LISA M. BURIANEK Solicitor General
Deputy Bureau Chief ANDREW D. BING
Environmental Protection Bureau Deputy Solicitor General
BRIAN LUSIGNAN FREDERICK A. BRODIE
Assistant Attorney General Assistant Solicitor General
Attorney for Respondents
Albany, New York 12224-0341
(518) 776-2399
JURISDICTION ...................................................................................17
ARGUMENT ........................................................................................19
ii
C. The Writ Is Appropriate Under the Circumstances............. 32
CONCLUSION .....................................................................................34
iii
TABLE OF AUTHORITIES
Page(s)
CASES
In re Tennant,
359 F.3d 523 (D.C. Cir. 2004).................................................... 16,18
Moreau v. FERC,
982 F.3d 556 (D.C. Cir. 1993)......................................................... 17
iv
Ohio Valley Environmental Coalition v. U.S. Army
Corps of Engineers,
674 F.Supp.2d 783 (S.D.W.Va. 2010) ......................................... 27n5
v
FEDERAL STATUTES
15 U.S.C. 717b(d)(3).............................................................................. 16
vi
33 U.S.C. 1341(d) ................................................................................ 15
STATE STATUTES
FEDERAL REGULATIONS
STATE REGULATIONS
FEDERAL RULES
FRAP 21(c)........................................................................................ 1
vii
MISCELLANEOUS
viii
Petitioner New York State Department of Environmental
the All Writs Act, 28 U.S.C. 1651, the Natural Gas Act, 15 U.S.C.
717r, Federal Rule of Appellate Procedure 21(c), and Circuit Rule 21.1,
rehearing and stay of FERCs ruling, FERC has nonetheless issued the
Department that the project will comply with state water quality
standards under Clean Water Act section 401, 33 U.S.C. 1341. The
Department also asks this Court to stay the effectiveness of the Notice
Water Act (Waiver Order), which held that the Department waived
Under the Natural Gas Act, the Waiver Order is not reviewable by this
Court until FERC acts on the Departments motion for rehearing, which
was filed October 13, 2017, and remains pending. See 15 U.S.C.
717r(a), (b). Despite repeated requests from the Department to stay the
2
Order, inflicting irreparable environmental harm and undermining the
has its principal place of business in New York, and FERCs Waiver
project in this Court. See Petition for Review, Docket No. 17-3465.
judicial review provision of the Natural Gas Act that places venue
declined to reach the merits of the case. See Millennium Pipeline Co. v.
Seggos, 860 F.3d 696, 701 (D.C. Cir. 2017). Because review of FERCs
Waiver Order will ultimately lie before this Court under 15 U.S.C.
appropriate.
3
RELIEF REQUESTED
Proceed with Construction until seven (7) days after FERC acts on the
September 15, 2017 Waiver Order. The Department also asks that this
Court stay the Notice to Proceed while it considers the merits of the
Petition.
ISSUE PRESENTED
Departments objections have not been acted upon by FERC and are not
4
STATEMENT OF FACTS
access roads could have short- and long-term negative effects on the
5
B. Millenniums Application to FERC and the
Department
required.
6
Department sent Millennium a second Notice of Incomplete Application
are endangered species under New York State law. Id. at 2-4.
and to comply with the requirements of the Clean Water Act FERC
8
observed that Clean Water Act section 401(a)(1) afforded it up to one
or deny the section 401 certification. Id. at 2 & n.1. The Department
explained that its time to act under Clean Water Act section 401 must
Appeals for the D.C. Circuit, arguing, among other things, that the
Departments review of the section 401 certification had taken too long,
and therefore had been waived. See Petitioners Brief, D.C. Cir. Docket
9
The D.C. Circuit dismissed the Petition for Review because
the Department had waived its section 401 review authority. Exhibit O,
concluded that Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir 2017),
10
and complete the required environmental review, and to stay the
reopening and any appeal thereof was pending. See Exhibit Q, Motion
charged in any manner with administering the Clean Water Act, see
Alabama Rivers Alliance v. FERC, 325 F.3d 290, 297 (D.C. Cir. 2003), it
11
after receipt of the request is the day the agency receives a certification
application. Id. 13, 15 n.25; see AES Sparrows Point LNG, LLC v.
Wilson, 589 F.3d 721, 729 (4th Cir. 2009) (concluding that section 401
Circuits intervening decision in Sierra Club, 867 F.3d 1357, but noted
10 n.13.
Order. Exhibit R, Request for Rehearing and Stay (Oct. 13, 2017). The
gaming the application process. The Department also noted that its
the U.S. Army Corps of Engineers (Army Corps) a federal agency that,
unlike FERC, is responsible for administering the Clean Water Act. Id.
12
at 4-6. The Department also noted that FERC, in contrast to its position
that section 401s plain language dictated the result, read additional
grant a stay of the [Waiver Order] pending any and all appeals thereof.
FERC.
20, 2017. Exhibit S. The Department again objected and asked that
request for rehearing of the Waiver Order and judicial review could be
obtained. Exhibit T.
upon and judicial review obtained, on October 27, 2017, FERC issued
13
begin construction without receiving a Clean Water Act section 401
Waiver Order. The Department also asks that this Court stay the
LEGAL STANDARDS
the rights of States under the Clean Water Act. See 15 U.S.C.
certification under section 401 of the Clean Water Act that the proposed
project will comply with the Clean Water Act, state water quality
Cir. 2017).
Natural Gas Act must first petition FERC for rehearing of the order. 15
U.S.C. 717r(a). [A]fter the order of [FERC] upon the application for
rehearing, a party has sixty (60) days to file a petition for review. Id.
located or has its principal place of business. Id. Neither the filing with
FERC of an application for rehearing nor the filing with the Court of
15
Appeals of a petition for review stays the effectiveness of the order
The All Writs Act provides federal courts with authority to issue
(D.C. Cir. 1984) (TRAC). Accordingly, this Court can issue writs to
appeal. In re Tennant, 359 F.3d 523, 529 (D.C. Cir. 2004). There are
three conditions for issuing a writ: (1) the petitioner must have no
other adequate means to attain the relief he desires; (2) the petitioner
must show that his right to the issuance of the writ is clear and
indisputable; and (3) the Court must be satisfied that the writ is
16
745 F.3d 754, 760 (D.C. Cir. 2014), cert. denied 135 S.Ct. 1163 (2015)
JURISDICTION
Pipeline LLC, 622 F.3d 602, 605 (6th Cir. 2010) (Exclusive means
exclusive, and the Natural Gas Act nowhere permits an aggrieved party
review of the Waiver Order may not be sought until after FERC has
Moreau v. FERC, 982 F.3d 556, 564 (D.C. Cir. 1993). However, the All
its prior decision, the Department will petition for review in this Court.
preserve its prospective jurisdiction over the Waiver Order, while the
Mass. July 15, 2015) (noting that party seeking to stay a FERC order
before a rehearing motion has been acted on should apply to the Circuit
18
ARGUMENT
v. FERC, 9 F.3d 980, 981 (D.C. Cir. 1993) (the Court lacks jurisdiction
rehearing and has asked FERC to stay the Waiver Order until judicial
review can be sought, see Exhibit D, FERC has not acted on the
19
order unless ordered by FERC). Unless this Court grants a writ of
less than six months. Id.; Exhibit L, Work Schedule. Many of the
could occur much sooner. See Exhibit M, Army Corps Permit Special
Court reviews them. See Sierra Club v. U.S. Army Corps of Engineers,
20
challenge to sports complex rendered moot by its construction because
Mineta, 364 F.3d 890, 893-894 (8th Cir. 2004) (request for injunctive
moot by completion of highway); but see Sierra Club v. U.S. Army Corps
gas pipeline did not render NEPA challenge moot where pipeline could
pipeline in the event the Waiver Order is reversed would cause further
the Department must resort to the All Writs Act as a stopgap measure
Co. v. FERC, 777 F.2d 760, 762 (D.C. Cir. 1985) (Scalia, J.) (where
FERC order was not yet subject to judicial review, requirement of All
satisfied).
At the most basic level, the Department simply asks this Court to
maintain the status quo while the Departments request for rehearing is
injunction is not available, however, because FERC has not acted on the
party seeks to stay a FERC order under All Writs Act). A party seeking
the merits, that [it] is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in [its] favor, and
22
Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). These four
water quality of streams and wetlands in the vicinity of the Project. See
subsoils, excavating a trench (at least 12 inches wider than the pipe and
deep enough to allow at least three feet of soil cover over the top of the
destabilize stream banks causing erosion and turbid discharges into the
23
conditions can adversely impact native aquatic life. Id. Although some
into wetlands and waterbodies. Id.; see also Exhibit E, EA at 41-42, 46.
drilling fluids, are reported and remedied and streams are monitored to
Aff. 8.
24
horizontal directional drilling protective measures and requirements for
within its borders. See S.D. Warren Co. v. Maine Bd. of Environmental
Protection, 547 U.S. 370, 380 (2006); Constitution Pipeline Co., 868 F.3d
to judicial review. See Kansas v. United States, 249 F.3d 1213, 1227
(10th Cir. 2001) (finding irreparable harm where agency action risked
25
depriving state of sovereign interests and public policies . . . without
act within one year of the receipt of a request for section 401
and interpret section 401. See AES Sparrows Point LNG, LLC v.Wilson,
589 F.3d 721, 730 (4th Cir. 2009); Alabama Rivers Alliance v. FERC,
26
section 401s public notice requirements, the time to act must
Tacoma v. Fed. Energy Reg. Commn, 460 F.3d 53, 67-68 (D.C. Cir.
2006).
comment process has concluded or, in some cases, before that process
has even commenced.5 FERC could then reject the certification for
more than 200 pages of exhibits, a mere eight days before the one-year
meaningful way.
589 F.3d at 729. FERC ignored this precedent, holding that the plain
meaning of after receipt of the request is the day the agency receives a
avoided the issue of whether the Department, as the agency tasked with
29
application, 33 U.S.C. 1341(a), FERC added language to the statute.
Water Act. See AES Sparrows Point, 589 F.3d at 729-30. Under 33
has commenced or waiver has occurred, the district engineer will verify
that the certifying agency has received a valid request for certification.
with State laws[.] Final Rule for Regulatory Programs of the Corps of
Engineers, 51 Fed. Reg. 41,206, 41,211 (Nov. 13, 1986). The Fourth
30
FERC offers the Department little consolation by claiming that
merits.
project until FERC can consider the Departments request for rehearing
order. In the event FERC denies the rehearing request, judicial review
31
by this Court will remain available to the Department. Whatever
the environment and the sovereign interests of the State of New York.
New Yorks power needs or that power from other sources will be
the State of New York will be stripped of its authority to protect the
maintain the status quo until FERC can act on the Departments
FERC has not addressed the legal errors in the Waiver Order, the
Department can file a petition for review of the Waiver Order and seek
Court will have jurisdiction to review the Waiver Order and a writ of
requesting that the writ extend seven days after FERC acts on the
action and, if appropriate, file a petition for review and seek a stay from
33
CONCLUSION
For the reasons described above, this Court should issue a writ of
until seven days after FERC acts on the Departments request for
rehearing of the Waiver Order. Additionally, this Court should stay the
Respectfully submitted,
ERIC T. SCHNEIDERMAN
Attorney General of the
BARBARA D. UNDERWOOD State of New York
Solicitor General Attorney for Respondents
ANDREW D. BING
Deputy Solicitor General By: ./s/ Brian Lusignan
FREDERICK A. BRODIE BRIAN LUSIGNAN
Assistant Solicitor General Assistant Attorney General
LISA M. BURIANEK NYS Department of Law
Deputy Bureau Chief The Capitol
BRIAN LUSIGNAN Albany, New York 12224
Assistant Attorney General (518) 776-2399
of Counsel
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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT
35