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A.G. Schneiderman Calls For Federal Investigation And Enforcement Against Constitution Pipeline Over Alleged Widespread, Unauthorized Tree Cutting And Other Construction Activities In New York

Evidence Collected By Schneiderman Supports Conclusion That Constitution Authorized, Encouraged, Or Condoned Construction Activity Along Its Pipeline Right-Of-Way – Even Though Project Hasn’t Received Necessary Approvals

Schneiderman Petitioning Federal Energy Regulatory Commission To Investigate Constitution’s Alleged Illegal Actions, Take Appropriate Enforcement Against Company, And Stay Conditional Approval Of Project 

Schneiderman: FERC Must Take Strong Enforcement Action Against Constitution To Ensure Pipeline Companies Know They Can’t Simply Thumb Their Nose At Laws Protecting New York’s Landowners, Communities, And The Environment

NEW YORK - Attorney General Eric T. Schneiderman today petitioned the Federal Energy Regulatory Commission (FERC) to initiate an investigation and enforcement action against the Constitution Pipeline Company (Constitution) over alleged violations of federal law, regulations and authorizations resulting from construction activities undertaken on portions of its pipeline right-of-way in New York.  The Attorney General is also asking FERC to stay its December 2014 Order conditionally approving the pipeline until the investigation and enforcement action is completed, and until Constitution has all additional approvals required under federal law.

The Attorney General’s petition contends – based on evidence collected by his office since early March of this year – that widespread tree clear-cutting and other construction activity has occurred along the company’s pipeline right-of-way corridor in New York, even though the project has not received the necessary approvals to begin construction.   Additional evidence collected by his office demonstrates that Constitution expressly or tacitly authorized, encouraged, or condoned landowners to undertake this construction activity and failed to advise them of the accurate status of the project.

“Absolutely no proposed pipeline project construction can begin until all required state and federal approvals are issued,” said Attorney General Schneiderman. “My office has found compelling evidence that Constitution not only ignored widespread, unpermitted construction along its pipeline right-of-way corridor, but even authorized, encouraged, or condoned it.  Constitution also did not report this activity to FERC or to the State.  FERC must take strong enforcement action against Constitution to ensure that pipeline companies know they can’t simply thumb their nose at laws that protect New York’s landowners, communities, and environment.”

The Constitution Pipeline is a proposed 125-mile natural gas pipeline running from Susquehanna County, Pennsylvania through Broome, Chenango, Delaware, and Schoharie Counties in New York.  In New York, the pipeline’s route encompasses a 100 mile, 100 to 125 foot wide pipeline right-of-way corridor that crosses 220 water bodies – many of which are sensitive trout-spawning waters – and approximately 80 acres of protected wetlands.  The project would also require over 23 miles of construction on steep and often very steep slopes, and entail significant impacts to the habitats of endangered and threatened species. 

Under the federal Natural Gas Act, FERC has authority over the approval and regulation of interstate natural gas pipelines.  In December 2014, FERC issued an order providing conditioned authorization for Constitution Pipeline project.  The order’s conditions included a requirement that, before commencing any construction activity on the proposed pipeline, the company must have received all applicable federal and state approvals, including permits required under the federal Clean Water Act, and must have received authorization to proceed with the work from FERC.  Neither the New York State Department of Environmental Conservation (DEC) nor the U.S. Army Corps of Engineers have issued the required Clean Water Act permits for the pipeline in New York, and FERC hasn’t issued an authorization to proceed.

Constitution holds pipeline right-of-way agreements granting easements on the properties on which these construction activities occurred.  As such, Constitution is responsible for ensuring that the requirements of the 2014 FERC order,  federal Natural Gas Act, and the Commission’s regulations – including prohibitions on beginning construction before the pipeline has received necessary federal and state approvals – are met within the right-of-way that the company controls. 

In March 2016, Attorney General Schneiderman’s office was informed that – despite the prohibitions on construction contained in the 2014 order – clear-cutting of trees and other vegetation by landowners had begun on Constitution’s right-of-way at locations in New York.  The Attorney General’s office investigated the matter and collected evidence – including that from first-hand observations – that confirmed not only widespread clear-cutting,  but also clearing, road building, heavy equipment use in or adjacent to state protected streams and wetlands and other sensitive environmental areas, and other construction-related activities along the pipeline right-of-way at locations in Broome, Delaware, and Schoharie Counties.  Additional evidence  – including reports of third-party monitors of the pipeline project – indicates that Constitution was aware of the activities within the right-of-way, but, contrary to its legal responsibility, took no action to stop or report them to FERC. 

Evidence collected by Attorney General Schneiderman’s office shows that Constitution failed to advise landowners that clear-cutting and other construction activities in right-of-ways on their property would likely violate the 2014 FERC order,  federal Natural Gas Act, and Commission regulations.  Further, this evidence suggests that Constitution expressly or tacitly authorized, encouraged, or condoned the alleged illegal cutting and other construction activities. 

For example, on January 29, 2016, FERC denied a request by Constitution to allow it begin construction of the pipeline project by initiating tree cutting in New York.  However, Constitution never advised New York landowners of the FERC’s denial; instead, the company sent a letter to landowners the next day stating its intention to begin pipeline construction in spring of 2016 – leading some New York landowners to reasonably conclude that pipeline construction on the right-of-way in New York was imminent and prompting them to prematurely harvest timber within the right-of-way on their property in order to save the timber’s monetary value.  

In today’s complaint and petition, Attorney General Schneiderman alleges that Constitution’s knowledge, and authorization, encouragement, or condoning of clear-cutting and other construction activities on portions of its pipeline right-of-way violate the 2014 FERC order because the company has not received required state and federal approval necessary to being construction on the project.  In addition, the petition alleges that these activities, in the absence of required permit approvals and an authorization to proceed from the Commission, violate the federal Natural Gas Act and the Commission’s regulations.  

Because Constitution is legally responsible for ensuring construction activity doesn’t begin in advance of the receipt of necessary approvals, and because of evidence that landowner activity was expressly or tacitly authorized, encouraged, or condoned by the company, the Attorney General’s petition today emphasizes that his office does not seek – and would oppose – any enforcement action by FERC against the involved landowners. 

Today’s complaint and petition calls on FERC immediately to initiate an investigation into Constitution’s alleged illicit actions with respect to tree-cutting and other construction activities on the pipeline right-of-way.   The petition also calls on FERC, based on the information provided by the Attorney General in the petition and any other evidence obtained by the Commission in its investigation, to take appropriate legal enforcement action against Constitution for these actions, including assessing appropriate monetary penalties.  The Natural Gas Act provides for a penalty of up to $1 million per day, per violation.  The complaint and petition also asks FERC to stay its prior order until the investigation and enforcement action is completed and until Constitution has obtained all other authorizations required.

This matter is being handled for the Environmental Protection Bureau by Bureau Chief Lemuel Srolovic, Assistant Attorney General Maureen Leary, Environmental Policy Analyst Jeremy Magliaro, and Environmental Scientist Mauricio Roma-Hernandez.  The Environmental Protection Bureau  is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Alvin Bragg.  The matter was investigated by Investigator Kathleen Coppersmith of the Attorney General’s Binghamton Regional Office and Deputy Chief Investigator Jonathan Wood of the Investigations Bureau.  The Investigations Division is led by Chief Dominick Zarrella.