On March 12, the U.S. Court of Appeals for the Second Circuit issued a decision interpreting Clean Water Act (CWA) Section 401 and the Federal Regulatory Energy Commission’s (FERC) permitting authority, which may have settled some lingering legal issues for the construction of pipelines. The case is New York State Department of Environmental conservation, et al., v. FERC.
The Second Circuit considered two issues:
- Whether FERC correctly held that NYSDEC waived its right to act on Millennium Pipeline Company’s (Millennium) application; and
- Whether FERC appropriate accepted and reviewed the application as subject to its exclusive jurisdiction under the Natural Gas Act.