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Second Circuit OKs Pipeline to New York Gas Plant

Clearing a hurdle to a controversial fracked-gas power plant in New York, the Second Circuit refused Monday to let state regulators review the environmental toll of the 442-mile Millennium Pipeline fueling it.

MANHATTAN (CN) – A controversial natural gas power plant tied to a New York corruption scandal dodged unrelated legal troubles on Monday, as the Second Circuit kept state regulators at bay.

The New York Department of Environmental Conservation wanted to throw a wrench in plans to connect the 442-mile Millennium Pipeline to a fracked-gas power plant in the Hudson Valley.

Operated by Competitive Power Ventures, or CPV, the Valley Energy Center received the federal appeals court’s permission Monday to move ahead with construction.

“We certainly disagree with the decision and are reviewing our options to determine any appropriate next steps regarding this pipeline project,” the department's spokeswoman Erica Ringewald said in a statement.

The Federal Energy Regulatory Commission, which previously approved the pipeline, declined to comment on the ruling.

Bruised by reports of environmental contamination and pay-for-play, CPV had been making headlines because of its ties to a bribery trial against Governor Andrew Cuomo’s former deputy Joseph Percoco.

Federal prosecutors charged the company’s former executive Peter Galbraith Kelly with bribing Percoco’s wife roughly $270,000 for a “low-show” job in return for favors from the state.

What had held up the permits for the pipeline fueling the Valley Energy Center, however, were not bribery allegations but environmental concerns.

In 2015, Millennium Pipeline Company LLC applied for water quality certifications from both state and federal regulators. Federal regulators gave the pipeline the green light the following year, but their state counterparts waited nearly two years before rejecting Millennium’s application.

A three-judge panel of the Second Circuit unanimously ruled Monday that the Department of Environmental Commission sunk its case by dawdling.

“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,” U.S. Circuit Judge Jose Cabranes wrote for the panel.

While New York declared a moratorium on drilling natural gas through hydraulic fracturing – better known as fracking – the state never banned the infrastructure and energy plants that support it.

Operated by TransCanada, the Millennium Pipeline pumps fuel from Ontario to Westchester, snaking through vast swaths of New York State along the way.

The Second Circuit found that the out-of-state fuel gave federal regulators jurisdiction to approve it.

“Millennium’s mainline system is linked to interstate pipelines that run both in and out of the state of New York,” the 12-page opinion states. “Although the pipeline at issue here is located entirely within New York and will deliver gas only to the Valley Energy Center, it will receive out‐of‐state gas from the Millennium mainline.”

TransCanada, the pipeline’s corporate parent, did not immediately respond to a request for comment.

CPV spokesman Tom Rumsey applauded the ruling in an email.

“We will continue to work with our state regulators, local leadership and project partners to bring low cost, reliable and environmentally sound electricity to support New York’s energy consumers,” he said.

Concerns about CPV’s environmental record has drawn months of protests to Lower Manhattan's Thurgood Marshall Courthouse, where Percoco’s corruption trial is being held 22 floors below the appeals court.

Some eight weeks after trial began, the jury in that case announced for a second time Monday that its deliberations have reached a deadlock.

"After considering the facts and the evidence with open minds, and using your instructions as a roadmap, we remain unable to reach a verdict," the foreman wrote in a note to the judge.

U.S. District Judge Valerie Caproni, who has been presiding over the corruption trial, warned that she might rule a mistrial should the jury send a third such note.

The 12-person panel will try again to reach a unanimous verdict on Tuesday.

Categories / Appeals, Energy, Environment, Government

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