Constitution Pipeline Company, LLC v. New York State Department of Environmental Conservation, et al.

The Energy Policy Act of 2005, amending the Natural Gas Act of 1938 (“NGA”), reaffirms Congress’ clear intent to federalize the approval and regulation of interstate natural gas pipelines by providing for the comprehensive federal regulation of the transportation and sale of natural gas in interstate commerce by the Federal Energy Regulatory Commission (“FERC”). See Islander E. Pipeline Co., LLC v. Conn. Dep’t of Envtl. Prot., 482 F.3d 79, 84 (2d Cir. 2006); see also Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300–01 (1988). “Congress placed authority regarding the location of interstate pipelines . . . in the FERC, a federal body that can make choices in the interests of energy consumers nationally . . . .” Nat’l Fuel Gas Supply Corp. v. Pub. Serv. Comm’n, 894 F.2d 571, 579 (2d Cir. 1990). The NGA preempts state permitting and licensing requirements, see Islander E. Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 143 (2d Cir. 2008), expressly limiting narrowly tailored authority for states to administer three federal regulatory statutes. One of these is the Clean Water Act (“CWA”). See 15 U.S.C. § 717b(d) (3). Under Section 401 of the CWA (“Section 401”), any applicant seeking a federal permit for an activity that “may result in any discharge into the navigable waters” must obtain “a certification from the State in which the discharge originates or will originate . . . that any such discharge will comply with” the state’s federally-approved water quality standards. 33 U.S.C. § 1341(a)(1). No applicable federal license or permit will be granted unless the certification required by Section 401 has been obtained, or the reviewing state body waives the requirement by