Commissioner Richard Glick Dissent Regarding Constitution Pipeline Company, LLC

Commissioner Richard Glick Statement

December 12, 2019
 

Docket No. CP18-5-003

Dissent Regarding Constitution Pipeline Company, LLC

I dissent from today’s order because the record does not establish that the New York State Department of Environmental Conservation (New York DEC) waived its authority under section 401 of the Clean Water Act.1 The majority, by contrast, finds waiver based on a crabbed interpretation of section 401 from which I have previously dissented. Although I cannot join the Commission’s finding of waiver on that basis, I recognize that this is a difficult case and believe that the record before us is inconclusive. Accordingly, I would direct the parties to submit additional briefing addressing whether any of Constitution Pipeline Company, LLC’s (Constitution) various filings with New York DEC rendered its request for a section 401 certificate sufficiently “different . . . to constitute a ‘new request’” under Hoopa Valley Tribe v. FERC.2

Hoopa Valley addressed the long-delayed relicensing proceeding for PacifiCorp’s Klamath River Hydroelectric Facility on the Klamath River along the border between California and Oregon.3 To make a long story short, several years ago PacifiCorp apparently came to the conclusion that relicensing the facility would not be cost-effective.4 PacifiCorp then entered an agreement with the two states and a variety of stakeholders to hold the relevant state licensing proceedings in abeyance while it pursued options for decommissioning the facility.5 One of the state licensing proceedings PacifiCorp sought to delay involved its request for a certificate pursuant to section 401 of the Clean Water Act.

Section 401 requires applicants for federal license that “may result in any discharge into the navigable waters”—a category that includes hydroelectric licenses issued by the Commission—to secure a certificate from the state in which the “discharge originates or will originate.”6 Section 401, however, imposes a time limit on states’ review of a certificate request: “If the State . . . fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application.”7 To avoid this one-year limitation, PacifiCorp agreed to annually withdraw and resubmit its section 401 application before the one-year limit expired—a task it accomplished each year by submitting a one-page letter, stating its intent to withdraw and resubmit its application.8 That process had gone on for “more than a decade” when the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) decided Hoopa Valley.9

Hoopa Valley held that PacifiCorp’s withdrawal-and-resubmission tactic did not restart the one-year limitation on the states’ review of its section 401 application,10 meaning that the states had waived their section 401 authority by failing to act on PacifiCorp’s application within a year. But the court went out of its way to limit its ruling to the facts before it. The court explained that its decision resolved “a single issue: whether a state waives its Section 401 authority when, pursuant to an agreement between a state and an applicant, an applicant repeatedly withdraws-and-resubmits its request for water quality certification over a period of time greater than one year.”11

Most importantly for the purposes of today’s order, the court expressly avoided addressing what happens when the applicant modifies its section 401 application before the one-year period elapses. Indeed, the court explicitly “decline[d] to resolve the legitimacy” of an arrangement in which an applicant withdrew its 401 application and submitted a new one in its place.12 Similarly, the court did not address “how different a [section 401 application] must be to constitute a ‘new request’ such that it restarts the one-year clock.”13 In addition, throughout the opinion, the court referenced a slew of factors that might limit the scope of its decision, including the parties “deliberate and contractual idleness,”14 the fact that the purpose of the agreement was to delay the license process,15 the fact that PacifiCorp “never intended to submit a ‘new request,’”16 and the decade-long licensing delay caused by the scheme.17

That makes Hoopa Valley a hard case to apply. On the one hand, the court made clear that the Commission’s prior interpretation—that withdrawal and resubmission of a section 401 application restarted the one-year period for review—was wrong. But that is about all that the court resolved. Indeed, as noted, the court identified, but did not decide, a host of questions that will ultimately determine the scope of the waiver rule announced in Hoopa Valley and how it applies to proceedings such as this one, which do not fit neatly within the narrow factual circumstance of that case.

In the year-and-a-half since Hoopa Valley was decided, the Commission has addressed the question of waiver on a case-by-case basis. The Commission has at times unanimously found a state to have waived its section 401 authority where an unmodified section 401 application had been pending before the relevant state agency for more than a year pursuant to an understanding between the applicant and that state.18 At other times, however, we have disagreed over how to apply Hoopa Valley to circumstances that the court went out of its way not to decide. Specifically, in McMahan Hydroelectric, we disagreed over the standard for evaluating when a resubmitted application is ‘different enough’ to constitute a new application for the purposes of section 401’s one-year deadline.19 In that order, my colleagues appeared to take the position that the only changes that would constitute a new section 401 application are major physical modifications to a proposed project (at least absent some unspecified and undefined “unusual circumstances”).20

Hoopa Valley does not require that result.21 As noted, the court was careful to avoid ruling on what a modified application would mean for section 401’s one-year time limit. Nevertheless, the court expressly contemplated that a modification to the section 401 application itself could be significant enough for that application to constitute a new application for the purposes of the one-year clock.22 I see nothing in Hoopa Valley or other Commission precedent that supports the majority’s presumption that only a major physical modification to a project can restart the one-year clock or that modifications made directly to the section 401 application are immaterial.

In any case, I see no reason to so drastically limit what might constitute a new section 401 application.23 Congress enacted section 401 so that states can ensure that a federally licensed or certificated project does not violate state or federal water quality standards and to permit states to impose such conditions as are necessary to ensure that result.24 Significant changes in how a project is constructed, operated, or monitored could well determine whether a state can make the water quality findings required by section 401, even if those changes do not require a new application with the Commission.25 Taking the position that only a revised application with this Commission could result in a new section 401 application underestimates the complex and nuanced review that many states undertake in implementing their section 401 authority.

This case illustrates the point. Throughout 2014 and 2015, Constitution repeatedly filed revised section 401 applications along with various other amendments and supplements to those applications.26 Several of these filings occurred between May 9, 2014, and May 9, 2015—the one-year period on which the Commission relies for its waiver finding.27 The additional submissions addressed a range of issues that would seem directly relevant to a state’s ability to determine whether discharges caused by the pipeline would comply with state and federal water quality standards.28 For example, many of the additional materials addressed the technical details of how the pipeline would cross water bodies—including the roughly 250 streams along the New York portion of the pipeline’s route—and whether the project would use open trenches or a trenchless procedure. It should almost go without saying that the construction methods and techniques used to cross those streams could materially affect any discharges in those waterbodies, making those differences potentially essential to the state’s ability to evaluate the pipeline’s compliance with the Clean Water Act and applicable state law.

But today’s order concludes that those revisions, amendments, and supplements are immaterial.29 For the reasons stated above, I do not believe that the Commission is applying the appropriate standard for evaluating waiver under section 401. Nevertheless, I recognize that this is a particularly difficult case in which to apply Hoopa Valley because it turns on the significance of technical changes included within Constitution’s revisions, amendments, and supplements to its section 401 application. Rather than finding waiver, I would direct the parties to submit additional briefing addressing those modifications and explain whether—and why—any of them restarted section 401’s one-year clock. I believe that that additional information would allow us to do justice to both the rule in Hoopa Valley as well as the important federalism and environmental values underlying section 401’s reservation of the authority to the states.

I would be remiss in failing to note that I supported the finding in the underlying order that New York DEC had waived its section 401 authority. But that was before the Commission announced its policy that, for all intents and purposes, only a physical change to a proposed project could restart section 401’s one-year clock.30 In addition, New York DEC’s rehearing request identifies changes that could conceivably have restarted section 401’s one-year period.31 In light of those facts, I believe that we must take a harder look at whether any of Constitution’s modifications to its section 401 application restarted the one-year clock and that further briefing is required before we can decide that issue one way or another. Accordingly, I cannot agree with my colleagues that the present record demonstrates that New York DEC waived its authority under section 401.
Finally, New York DEC requested a stay pending judicial review.32 Under the Administrative Procedure Act, an agency may grant a stay “where justice so requires.”33 I would grant the stay. For the reasons stated above, I do not believe that the Commission has established that New York DEC waived its section 401 authority under Hoopa Valley. Moreover, given the considerable uncertainty about how Hoopa Valley applies outside of the narrow context addressed in that opinion, I believe that the more equitable outcome would be to pause development of the pipeline until the courts provide clarity on waivers of section 401. After all, this is a proceeding in which the Commission has already once changed course: As noted, the Commission originally took the position that the withdrawal-and-resubmission scheme in this proceeding restarted the one-year limitation only to reverse course after Hoopa Valley.34 Although I agree it was appropriate to reconsider our position in light of Hoopa Valley, I am concerned at the prospect of a court again admonishing the Commission that it has misinterpreted section 401, requiring us to make yet another about-face. It would be far better to sort out the waiver question once and for all rather than risking another start-and-stop step in this saga.

For these reasons, I respectfully dissent.




 

• 11 33 U.S.C. § 1341(a)(1) (2018).
• 22 913 F.3d 1099, 1101 (D.C. Cir. 2019), pet. for cert. denied sub nom. Cal. Trout v. Hoopa Valley Tribe, 2019 WL 6689876 (Dec. 9, 2019).
• 33 Id. at 1101.
• 44 Id. at 1101-02.
• 55 Id. at 1101.
• 66 33 U.S.C. § 1341(a)(1).
• 77 Id.
• 88 Hoopa Valley, 913 F.3d at 1102-04.
• 99 Id. at 1104.
• 1010 Id. at 1103.
• 1111 Id.; see also id. at1104(noting that the D.C. Circuit had not previously addressed “the specific factual scenario presented in this case, i.e., an applicant agreeing with the reviewing states to exploit the withdrawal-and-resubmission of water quality certification requests over a lengthy period of time”).
• 1212 Id.
• 1313 Id.
• 1414 Id.
• 1515 Id. (“This case presents the set of facts in which a licensee entered a written agreement with the reviewing states to delay water quality certification”); id. at 1105 (describing the set of facts before the court as one “in which a licensee entered a written agreement with the reviewing states to delay water quality certification”).
• 1616 Id.
• 1717 Id.
• 1818 E.g., Placer Cnty. Water Agency, 169 FERC ¶ 61,046 (2019).
• 1919 McMahan Hydroelectric, LLC, 168 FERC ¶ 61,185 (2019).
• 2020 Id. P 38 & n.43; id. (Glick, Comm’r, concurring in part and dissenting in part at P 4)(“[T]oday’s order appears to suggest that additional information submitted to the state after the initial application is irrelevant to determining whether the state waived its authority, unless it reflects a major physical modification of the project.”).
• 2121 Id. (Glick, Comm’r, concurring in part and dissenting in part at P 4) (“Nothing in Hoopa Valley’s reasoning requires the Commission to determine that a state waives its water quality certification authority when the applicant withdraws and resubmits an application that has been significantly modified since the previous submission.”).
• 2222 Hoopa Valley, 913 F.3d at 1104.
• 2323 Cf. McMahan Hydroelectric, LLC, 168 FERC ¶ 61,185 (Glick, Comm’r, concurring in part and dissenting in part at P 4) (“It is true that considering whether a significant supplemental submission restarts the one-year clock might make it more difficult for the Commission to find that a state has waived its section 401 authority. But that is not, in my opinion, a persuasive reason to ignore the effects that such submissions might have on the one-year clock.”).
• 2424 See PUD No. 1 of Jefferson Cnty. v. Wa. Dep’t of Ecology, 511 U.S. 700, 707-08 (1994); see also S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 386 (2006) (explaining why “Congress provided the States with power to enforce ‘any other appropriate requirement of State law’” pursuant to their section 401 authority).
• 2525 PUD No. 1 of Jefferson Cnty, 511 U.S. at 707 (listing the provisions of the Clean Water Act that a state must find a discharge consistent with as part of its section 401 determination).
• 2626 New York DEC Rehearing Request at 22-24; New York DEC Supplemental Answer and Protest at 11-15.
• 2727 Constitution Pipeline Co., LLC, 169 FERC ¶ 61,199, at P 18 (2019) (Rehearing Order).
• 2828 New York DEC Supplemental Answer and Protest at 11-13; New York DEC Rehearing Request at 22-23.
• 2929 Rehearing Order, 169 FERC ¶ 61,199 at PP 24-25.
• 3030 See supra notes 19-20 and accompanying text.
• 3131 See New York DEC Rehearing Request (citing to New York DEC Supplemental Answer and Protest at 11-15).
• 3232 New York DEC Rehearing Request at 26-30.
• 3333 5 U.S.C. § 705 (2018).
• 3434 Constitution Pipeline Co., LLC, 168 FERC ¶ 61,129, at P 8 (2019).