In light of the recent decision by the U.S. Court of Appeals for the District of Columbia Circuit, I am calling on the NYS Department of Environmental Conservation (DEC) to rescind its recently issued air permits and water quality certification for Millennium Pipeline’s Eastern System Upgrade project (ESU). They maintain that in its August 22 decision, Sierra Club, et al. v. FERC, No. 16-1329, the Court of Appeals for the D.C. Circuit agreed with Sierra Club that the Federal Energy Regulatory Commission (FERC) environmental review of the project in question did not adequately assess the greenhouse gas emissions that would result from burning the gas that would be transported by the pipeline. Within days of that decision by the D.C. Circuit Court, the DEC issued its permits for the ESU. I consider the permits to have been improperly issued and urge the DEC to rescind the ESU permits.

In the process of its own review of permit applications, the DEC relies on FERC’s environmental assessment for natural gas projects that are subject to FERC jurisdiction, and which are conducted pursuant to the National Environmental Policy Act. In the Sierra Club case, the Court stated that FERC “must consider not only the direct effects, but the indirect environmental effects, of the project under consideration. ‘Indirect effects’ are those that ‘are caused by the [project] and are later in time or farther removed in distance but still reasonably foreseeable.’“ (citations omitted). In the Court’s opinion, those foreseeable indirect effects included the release of carbon compounds that contribute to climate change from burning the gas. In the ESU, the construction of a new 22,400 HP compressor station in the Town of Highland and the addition of 22,400 HP compressor to the existing compressor station in the Town of Hancock, will emit over 278,000 tons of climate-impacting carbon dioxide equivalents annually. Further, as Delaware Riverkeeper wrote to FERC and DEC:

“…the Millennium … Eastern System Upgrade Project is an improperly segmented portion of a larger project that includes the Valley Lateral Pipeline and the CPV Valley Energy Center. … Based on the recent decision by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in Sierra Club, et. al. v FERC … which found that FERC is required to consider and quantify the downstream greenhouse gas emissions from the combustion of the natural gas transported by a project as part of their National Environmental Policy Act review, FERC’s environment review of the ESU project is inadequate and deficient as it fails to consider or quantify the indirect effects of downstream GHG that will result from burning the natural gas that the ESU project will transport to the CPV Valley Energy Center and/or other natural gas powerplant facilities.”

Sierra Club, the prevailing party in the Court of Appeals decision, also wrote to FERC on August 30, urging them to reconsider the ESU in light of that decision:

“First, the environmental assessment (EA) for the project impermissibly downplays the cumulative climate impacts of the gas infrastructure build-out now occurring in New York and surrounding states. No rationale is offered for the conclusion that GHG emissions from the project would be cumulatively insignificant. ...FERC makes no effort to assess the regional gas infrastructure in the current or recent regulatory review pipeline, and thus FERC fails to reach an informed decision about the climate ramifications of the project. This must be corrected as the D.C. Circuit instructed FERC in the [Sierra Club] case."

“In its letter to FERC on August 30, DEC correctly cited the Court of Appeals decision in Sierra Club in denying the necessary permits for the Valley Lateral Project,” stated Karen London, a co-founder of SACRED. “It is baffling why the DEC did not apply these same standards to the ESU project given the recognition that the Court gave to the foreseeability of natural gas’ contributions to climate change.”

“Over the past few weeks, the nation has watched in horror as Texas, Florida and the Caribbean have been devastated by catastrophic hurricanes Harvey and Irma, turning citizens into climate refugees. In the western US, forest fires have reduced a record number of acres to smoking char. In Asia, flooding has killed thousands. At what point does the DEC take climate change into account and stop the proliferation of gas infrastructure in New York?,” asked George Billard of SCRAM. “The August 22 Court of Appeals decision mandated that FERC consider the climate impacts of greenhouse gas emissions and the DEC should have determined that FERC failed to do so for the ESU as the DEC rightly did for the Valley Lateral Project. We call upon the DEC to reconsider its decisions on ESU and rescind the permits on that project.”

“It is time for Governor Cuomo and the DEC to shut down the expansion of all fracked gas infrastructure in New York. Cornell University scientists Anthony Ingraffea and Robert Howarth have established that the Valley Lateral Project and the ESU, together with the CPV power plant they would feed, would generate 7 million metric tons of CO2–equivalents, increasing state power-sector emissions by 15%,” stated Pramilla Malick, founder of Protect Orange County. “As if we needed any more reminding, given the extreme weather events of the past few days, now is the time to move New York and the nation away from its continued dependence on fossil fuel.”

“Millennium has been obviously and blatantly misrepresenting the size and scope of the true upgrade project it is carrying out and planning for, and they are doing so for exactly this purpose, so they can misrepresent the level of harm and damage that will be inflicted on communities and the environment. It is up to New York to prevent the bait and switch taking place here, and to ensure full review of the full proposed Millennium project, not just the little slices it keeps doling out,” said Maya van Rossum, the Delaware Riverkeeper and leader of the Delaware Riverkeeper Network.

The time to act is now. Rescind the permits on Millennium Pipeline ESU and halt the further expansion of fossil fuel infrastructure in NY.