Environmental groups\u2019 lawsuit against New York state for approving a permit for a new natural gas pipeline aims, in part, to home in on a key argument: The state rejected this permit twice before.<\/p>\n
Earthjustice, the Natural Resources Defense Council, and others filed<\/a> a petition for review Tuesday in the US Court of Appeals for the Second Circuit over the New York State Department of Environmental Conservation\u2019s issuance earlier this month of a water quality permit for a proposed Williams Co. natural gas pipeline. <\/p>\n While a brief outlining the environmental groups\u2019 specific legal arguments has yet to be filed, lawyers for the NRDC and Earthjustice in interviews explained their thinking behind the legal challenge.<\/p>\n \u201cTwice this project has been rejected for failure to show compliance with state water quality standards,\u201d said Jared Knicley, managing litigator for the NRDC. \u201cNothing has changed since those rejections, nothing factual, nothing legal.\u201d<\/p>\n \u201cA lot of this hinges both on whether the conclusion that this will satisfy water quality standards is accurate and whether or not their excuses for why they made a 180-degree turn are legitimate,\u201d said Susan Kraham, managing attorney at Earthjustice.<\/p>\n The pipeline would route natural gas from Pennsylvania through New Jersey to the New York City area. More than 17 miles of the pipeline is slated to go under Raritan Bay and Lower New York Bay near Staten Island.<\/p>\n The DEC, which said Tuesday it doesn\u2019t comment on pending litigation, pointed out earlier this month<\/a> there were different considerations to take into account when reviewing the application for the pipeline project after it rejected it years ago. <\/p>\n It cited 2023 guidance from the Environmental Protection Agency related to the Clean Water Act, other similar projects that have been built, public comments, and what it called \u201csubstantive revisions to ecological considerations,\u201d like an adjustment related to hard clam density.<\/p>\n A spokesperson for the DEC didn\u2019t elaborate, when asked, about what the agency was specifically citing in the 2023 EPA guidance. Earthjustice\u2019s Kraham called the DEC\u2019s mention of that guidance a \u201ctotal red herring\u201d and said the agency \u201cneeded an excuse to change their mind.\u201d<\/p>\n Then and now<\/p>\n The DEC previously denied approving the water quality permit for the pipeline project twice, first in 2019, and then in 2020, saying<\/a> the company hadn\u2019t shown it would meet \u201capplicable water quality standards.\u201d<\/p>\n One major difference between 2020, when the project was last rejected for a water quality permit, and now is who is in the Oval Office. It\u2019s been reported<\/a> that the current Trump administration allowed construction on Empire Wind 1, a major offshore wind project in the New York area, to start up again amid New York Gov. Kathy Hochul\u2018s (D) openness to pipeline projects.<\/p>\n \u201cWhile I have expressed an openness to natural gas, I have also been crystal clear that all proposed projects must be reviewed impartially by the required agencies to determine compliance with state and federal laws,\u201d Hochul said in a statement to reporters who inquired on Nov. 7, the day the DEC approved the permit. \u201cI am comfortable that in approving the permits, including a water quality certification, for the NESE application, the DEC did just that.\u201d<\/p>\n The governor didn\u2019t lean on the DEC to approve the permit, a person familiar with the matter said. The DEC didn\u2019t respond to requests for comment on whether a deal with President Donald Trump and Hochul was why the agency approved the permit.<\/p>\n The environmental groups\u2019 lawsuit could serve as a test for how strongly the DEC can justify its change of course.<\/p>\n \u201cWhen a permit is denied three times, and then suddenly granted, it certainly raises eyebrows,\u201d said Michael Gerrard, founder and faculty director at Columbia Law School\u2019s Sabin Center for Climate Change Law.<\/p>\n Williams, the company behind the project, said in a statement the state\u2019s \u201capprovals followed a rigorous, science-based review under state and federal law.\u201d<\/p>\n \u201cWe remain confident in the strength and legal durability of the New York State Department of Environmental Conservation\u2019s approvals for the NESE project,\u201d the company said.<\/p>\n The state, in issuing the permit earlier this month, laid out<\/a> several \u201cenvironmentally protective conditions\u201d the project has to have, including having third-party monitors on site, keeping contaminants from impacting water quality in the Bays and \u201cminimizing and mitigating impacts\u201d on hard clams, winter flounder and others.<\/p>\n The NRDC and Earthjustice and others also sued<\/a> the New Jersey Department of Environmental Protection over approving water quality permits for the same project. The DEP on Tuesday declined to comment.<\/p>\n