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Sunday December 17, 2017

 mdnlawsuit

MDN has previously reported on a $900 million natural gas-fired electric generating plant coming to Orange County, NY (see Orange County, NY Marcellus-Fired Electric Plant OK’d by Judge). The CPV (Competitive Power Ventures) Valley Energy Center project is being opposed by local anti-drilling ninny nannies, including Hollywood star James Cromwell. No matter. It’s already under construction. Unfortunately the very worthy project is marred by corruption inside the Cuomo Administration (see NY NatGas-Fired Electric Plant an Inside Job for Corrupt Cuomo Aide). However, construction continues and the plant will get built. The problem now is getting a 7.8 mile pipeline, an off-shoot pipeline from the mighty Millennium Pipeline, built to the plant to supply the natural gas it will need to run. In November the Federal Energy Regulatory Commission (FERC) approved the short pipeline (see FERC Approves Pipeline to Orange County, NY NatGas Power Plant). However, as with the Constitution Pipeline, the Cuomo Dept. of Environmental Conservation (DEC) is intentionally blocking this pipeline using delays–no doubt at Cuomo’s direction. Millennium is not, like Williams did with the Constitution, sitting on its hands waiting for the DEC. The Millennium is aggressively pushing the DEC to grant the necessary water crossing permits and has just sued the DEC to make it happen…

Millennium calls their project the Valley Lateral Project. As you can see from the timeline below (from Millennium’s website description for the project), construction should have begun last September, with an in-service of this April. That timeline is blown to smithereens.

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MDN friend Tom Shepstone, of the always-excellent Natural Gas Now website, picks up the story:

The New York DEC Con Game: Delay, Delay, Delay

If you want to understand the full politically corrupt nature of New York State’s Department of Environmental Conservation (DEC) these days you only need to read this. The important discussion (the excuse-making) starts on page 26. It’s all about the seven miles of pipeline Millennium Pipeline needs to build to supply gas to the new CPV Valley Energy Center in Orange County, New York.

The project, although it is an excellent one, was marred by the CPV staff allegedly seeking favors from Prince Corruptocrat’s political hacks, a matter now in the criminal courts. Regardless what did or didn’t happen, the New York State DEC is now playing CYA and, of course, it’s totally dominated by NRDC gang anyway. DEC, therefore, has gone into full delay mode. The way it’s going about it is totally disingenuous, of course, which is standard operating procedure at the top of the agency and in the Governor’s Office. Indeed, it’s a lesson in DEC con games.

The New York State DEC, at the regional and lower department level, is a professionally well-run agency. But, at the top, DEC has been run by two NRDC gang shills in a row; Joe Martens and Basil Seggos. Seggos, of course, is already in court for denying the Constitution Pipeline’s Section 401 certification after years of delay. There’s no doubt Andrew Cuomo was involved in that decision and it was a classic case of DEC delaying, delaying and delaying some more while promising action if just got a little more information. Assuming the agency was operating in good faith, the companies involved played along, only to double-crossed by DEC in the end by an explicable and purely denial of the 401 certification, which should be little more than a ministerial action under FERC procedures.

FERCMAP

Route of Millennium Pipeline extension to serve CPV Valley Energy Center

Millennium Pipeline, perhaps taking a cue from the Constitution Pipeline debacle, is properly playing hardball with DEC, demanding they live up to the rules. DEC has had their application for the 401 certification for a year (the maximum under the Clean Water Act) and as it drew to a close Millennium promptly went to court. The agency, to no surprise, is outraged anyone would have effrontery to even suggest there is a DEC con game in play. No one one is more aghast at being called a crook than a crook, of course. They’re shocked, shocked to imagine anyone suspects them of politics after all that has gone on since December 17, 2014 when Upstate was Zucker-punched with a fracking denial.

That fake shock is registered on page 29 when DEC says this;

Although the Department could have denied Millennium’s application as incomplete, the Department reasonably gave Millennium the opportunity to provide supplemental information instead. The Department should not be penalized now for attempting to work cooperatively with Millennium to ensure that the application contains all the necessary information.

Let me, as someone with four decades of experience working with agencies, interpret. What DEC is saying is this: “You don’t like our endless delays? Fine, we’ll just deny the damned thing and you can take us to court.” Millennium, though, has called their bluff by exposing the delay at the first opportunity. They understand what far too few grasp; if you’re going to going to have to go to court, go sooner rather than later.

millenniumpipe

Existing Millennium Pipeline crossing of Route I-84 a few miles west of CPV Valley Energy Center – but for the yellow pipeline marker, there’s no sign of the pipeline

Will Millennium be successful in this lawsuit? No one knows. Courts are fickle. But, what Millennium has done is to expose the DEC con game and that will make it less possible for the agency to do to it what it did to the Constitution Pipeline. That is the real aim here; to cap the amount of delay and set this thing up for a FERC decision that DEC waived its rights by its delays. Bravo!

The DEC con game is summed up on pages 37-38 with this (emphasis added:

The Department regulations describe specific information that must be furnished in support of specific permits, but also provide that “[s]upplemental information that the department determines is necessary to review the application may be requested at any time.”

DEC is saying it can’t start it’s official review of a 401 certification application, which it has one-year to do under the law, until it has a complete application, but it has the right to define “complete” on its own terms by endlessly asking for more information. Such an interpretation, of course, potentially extends the one-year deadline forever if DEC says it wants more information. This isn’t due process — it’s bureaucratic tyranny at the hands of NRDC gang hacks and Prince Corruptocrat. It’s also the kind of thing that presents opportunities for graft but that’s another story.

The delay in this instance has many possible excuses, in fact, but that it is a DEC con game is also clear from the type of information DEC claims to still need:

Following up on Millennium’s April 22, 2016 response, the Department sought further information regarding effects on wetland-adjacent areas and noted that Millennium still had not updated its application to reflect the correct number of wetlands crossed by the Project. The Department also sought details relating to project construction and mitigation of the effects on wetlands and other waterbodies.

The Department additionally sought – again in response to Millennium’s April 22, 2016 submission and the Environmental Assessment – information about the project’s effects on the Indiana bat and the bog turtle. The Department observed that one wetland near the Project had been “identified as potential bog turtle habitat by the Applicant” and that the entire contiguous wetland complex should be considered wetland habitat, including a wetland that would be crossed by the pipeline. Therefore, “to meet the requirements of a complete application,” the Department asked Millennium to “provide measures that will be taken both during construction and operation of the pipeline to avoid impacts to bog turtles.”

Indiana bats are listed as endangered under federal and New York State law, while bog turtles are listed as threatened under federal law and as endangered under New York State law. Notwithstanding CPV Valley’s argument to the contrary, preserving wetland habitats for endangered species is a prerogative of state law, and is therefore an “appropriate requirement of State law” relevant to the Department’s decision whether to grant, condition, or deny a section 401 certification.

This is pure BS. The number of wetland crossing isn’t important — it’s how they’re done and there’s nothing in the DEC response to indicate Millennium wasn’t going to follow the extensive State and Federal law on this subject. It’s a bureaucratic detail that could have been simply noted by the agency and correct in any permit issued. What’s also revealed is that DEC is looking way, way beyond the water quality that is supposed to be the subject of its 401 water quality certification. Preserving Bog Turtles and Indiana Bats only suspected of possibly maybe being there is not part of that mission. That’s a subject for FERC’s environmental assessment. The reader can now understand why we made such a fuss over that Bumble Bee. Such things are merely tools in the hands of hacks such as Basil Seggos to stop things when any excuse will do.

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CPV Valley Energy Center now under construction

DEC, in short, is thwarting the law here for political purposes. They are trying as hard as they to turn a relatively simple water quality certification process into an environmental impact statement that FERC is already doing. Their goal is simply to increase their own leverage for political purposes. Nothing could be more clear. The good news, though, is that Millennium, with a history of doing business in New York, knows the DEC con game and they’re not letting them get away with it.

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