Author: Mark Lansing


Although it granted Millennium Pipeline Co. LLC’s request, the Federal Energy Regulatory Commission (“FERC”) refused to overrule New York’s denial of a Clean Water Act (“CWA”) permit, rejecting Constitution Pipeline Co. LLC’s argument that the state waived its authority under Section 401 of the CWA. Under Section 401 of the CWA, state agencies have one year to act on a permit application by a pipeline company, or else their authority may be deemed waived. Although New York State Department of Environmental Conservation’s April 2016 denial of a CWA Section 401 water quality permit came nearly three years after Constitution Pipeline initial application, FERC found that the NYSDEC had acted within the statutory limits imposed by Section 401. FERC based its finding on Constitution’s two withdrawals and resubmissions of its applications, finding each resubmission reset the one-year deadline. Constitution Pipeline submitted its original application in 2013, then, refiled its application in May 2014, only to resubmit it again in April 2015 (to give NYSDEC additional time to review). “By withdrawing its applications before a year had passed, and by presenting New York DEC with new applications, Constitution gave New York DEC new deadlines,” FERC said in its order. “The record does not show that New York DEC in any instance failed to act on an application that was before it for more than the outer time limit of one year.”...

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Kentucky’s Limited Energy Renewable Incentives

Incentive Program In August 2007, Kentucky enacted the Incentives for Energy Independence Act (IEIA) (KRS 154.27-010 through 154.27-090). As with many Kentucky administered tax incentive program, the inducements under the IEIA are negotiated by the Kentucky Cabinet for Economic Development (subject to final approval by the Kentucky Economic Development Finance Authority (KEDFA)). For renewable energy facilities, the incentives may include: Credit of up to 100% of the Kentucky income tax or the limited liability entity tax; sales and use tax refunds of up to 100%; and/or a wage assessment credit of up to 4% for associated employees on their income tax. Eligible companies include any company that constructs, retrofits, or upgrades a facility to: Increase the production and sale of alternative transportation fuels; Increase the production and sale of synthetic natural gas, chemicals, chemical feed stocks, or liquid fuels from coal, biomass resources, or waste coal through a gasification process; Increase the production and sale of energy-efficient alternative fuels; and/or Generate electricity for sale through alternative methods such as solar power, wind power, biomass resources, landfill methane gas, hydropower, or other renewable resources.. To qualify, the facility must be: An alternative fuel facility or gasification facility that is carbon capture ready and uses oil shale, tar sands, or coal as the primary feedstock. The minimum capital investment is $100 million. An alternative fuel facility or gasification facility that is...

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Under the Natural Gas Act (“NGA”), the Federal Energy Regulatory Energy Commission (“FERC”) has jurisdiction over development of interstate natural gas pipelines, except that a state may grant or deny a water quality certification application; provided the State acts timely. Millennium seeks to build a 9-mile pipeline from its main pipeline to the CPV combined cycle natural gas fired electric plant in Orange County, NY (called the Valley Lateral Project). Millennium Pipeline Company sued the New York State Department of Environmental Conservation (DEC), arguing it dragged its feet in ultimately denying its application.  At issue was a delay by the DEC to issue a Section 401 Water Quality Certification or denial for the pipeline project. By section 401 of the Clean Water Act, a State must grant or deny the certification application “within a reasonable period of time (which shall not exceed one year) after receipt of [a] request.” Id. Alcoa Power Generating Inc. v. FERC, 643 F.3d 963, 972 (D.C. Cir. 2011) (quoting 33 U.S.C. § 1341(a)(1)). If the State fails to act within that time period, the Act’s “certification requirements” are deemed “waived.” The U.S. Court of Appeals for the District of Columbia Circuit dismissed the lawsuit by Millennium, reasoning FERC had the power to override the DEC and issue the permits.  Thereafter, finding the DEC had waived its authority under Section 401, the FERC ordered the...

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The DW Energy Blog is published by Dickinson Wright PLLC to inform the public of important developments within the firm and practice areas. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in this blog.