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National Fuel Gas Supply Corp. v. New York State Department of Environmental Conservation

ELR Citation: 49 ELR 20017
Nos. 17-1164-cv, (2d Cir., 02/05/2019)

The Second Circuit vacated a decision by the New York State Department of Environmental Conservation denying a state water quality certification for construction of a natural gas pipeline through northwestern Pennsylvania and western New York. The pipeline company argued that the Department's denial of its CWA §401 certification was arbitrary and capricious. The court found that the Department's denial letter, which contained no record citations nor citations to specific projects or studies it may have considered, failed to sufficiently explain a rational connection between the facts found and the choices made. Moreover, the Department based its denial on considerations outside of the company's application, and mistakenly referenced the company's proposed use of permanent culverts and wet-crossings. The court therefore vacated the decision and remanded for the Department to more clearly articulate its basis for the denial and how that basis is connected to information in the record.