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Millennium pipeline loses suit over permit delay

23 Jun 2017 16:34 (+01:00 GMT)
Millennium pipeline loses suit over permit delay

Washington, 23 June (Argus) — A federal court today threw out a lawsuit by the Millennium Pipeline that tried to force New York to take action on a water permit request for a 123mn cf/d (3mn m3/d) pipeline extension.

But the DC Circuit Court of Appeals, in its ruling, provided a detailed path for Millennium and other pipeline companies that have faced similar delays to start construction even without a water permit from New York. That path depends on New York missing a one-year deadline to process water permit applications and would not resolve the state's decision to deny other permits.

Millennium wants to extend its pipeline about 8 miles (13km) to the CPV Valley Energy Center, a 630MW combined-cycle power plant set to begin operations in February 2018. But it has been unable to start construction because it is waiting for the New York Department of Environmental Conservation to issue a water quality permit for the $39mn project.

Millennium in response filed a lawsuit claiming the environmental agency missed a one-year federal deadline to process its application for the water permit. Millennium argues that one-year clock started when it filed its permit in November 2015. But New York says the application was not complete at the time and argues it has until at least 30 August to process the permit.

The DC Circuit threw out the lawsuit because it said Millennium failed to show there was an "injury" the court could actually address. If state regulators were taking too long to process the water permit, as Millennium claims, then under federal law the state's "inaction would operate as a waiver" and pipeline construction could proceed.

Millennium said it was still reading through the decision and declined to comment further.

The court's decision does not resolve whether the state missed its one-year deadline but says the pipeline could go to the US Federal Energy Regulatory Commission (FERC) to reach a decision on that dispute.

"So what can Millennium do in the face of the department's continued inaction? Millennium can go directly to FERC and present evidence of the Department's waiver," the ruling said.

The court acknowledges FERC might decline to find the waiver but says if it did, that decision could be immediately challenged in federal court. Pipeline companies have raised concerns that this approach could take years to resolve.

The New York Department of Environmental Conservation did not respond for comment.