U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Court: New York Pipeline May Go Forward

A federal appeals court turned back a New York agency's attempt to slow down a controversial natural gas pipeline, which has been tied to a state government scandal in the same courthouse.

In New York State Department of Environmental Conservation v. Federal Regulatory Commission, the U.S. Second Circuit Court of Appeals said the department waited too long to challenge the pipeline over water issues. As a result, the 442-mile Millennium Pipeline will go forward.

Meanwhile in the same building, federal prosecutors closed in on a former state official in a bribery trial involving the same pipeline company. In New York, they say, one hand washes the other.

Conservation Case

Competitive Power Ventures, which operates the Valley Energy Center, won the go-ahead for the pipeline project from the court of appeals. A three-judge panel said the state Department of Environmental Conservation waived its right to challenge a water certification.

"We conclude that the Department waived its authority to review Millennium's request for a water quality certification under the Clean Water Act by failing to act on that request within one year," the panel said.

The Second Circuit said federal regulators had the authority to approve the pipeline, even though it is located entirely in New York, because the gas will come from out-of-state.

Bribery Case

The pipeline has been a laid-down lightening rod for protests against the company and Gov. Andrew Cuomo's former deputy Joseph Percoco. Federal prosecutors say Competitive Power Ventures bribed Percoco's wife for state favors.

Former company executive Peter Galbraith Kelly allegedly paid her $270,000 in the scheme. The jury is out on that criminal case, which is legally unrelated to the conservation case.

Environmentalists, however, have literally laid down in protest against the pipeline project. They said drilling for natural gas through hydraulic fracturing, also known as "fracking," harms the environment.

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