What Explains Invisibility of Connecticut Pipeline Permit Denial?

What Am I Missing?

Connecticut Case Should Be An Example for a 50 State Campaign

Sometimes legal victories are so significant that they undergo a process that extends far beyond the courtroom and legal community to become a part of the fabric of daily life, public discourse and lay a groundwork for activism – think “Brown v. Board of Education“.

The US Supreme Court’s “Massachusetts“ decision that found that CO2 was a pollutant able to be regulated under the Clean Air Act is an example of that phenomenon with respect to climate change.

(fracktivists had similar victories in the Pennsylvania’s Supreme Court’s decision striking down pro fracking law called A13 and in NY Gov. Cuomo’s fracking moratorium.)

While not quite to those levels of profound legal and policy significance, I may have stumbled upon a similar case for the interstate gas pipeline battles – but curiously, I could find little of the process of assimilation into the broader pipeline debate or focus of anti-pipeline activism.

What am I missing? This is not ancient history. Check out these features and their relevance today:

I’ve written repeatedly about what I consider the most powerful tool to kill interstate gas pipelines: State denial of the water quality certification under Section 401 (and 404) of the federal Clean Water Act. (does anyone think these practices would “protect existing uses” and “maintain existing water quality” at 31 C1 stream crossings?)

The Connecticut case that relied on this State power killed a FERC regulated interstate pipeline known as Islander East.

The Connecticut DEP denied a Clean Water Act based water quality certification and that State permit denial killed the pipeline. State power was not preempted.

The Connecticut DEP Commissioner who denied the permit is now the Obama EPA Administrator, Gina McCarthy (during a raging national debate on the Keystone XL oil pipeline). Curiously, that bold action is not even listed in her Wiki bio.

The Connecticut State Attorney General who litigated the denial is now US Senator Richard Blumenthal. Curiously, that bold leadership also is not listed in his Wiki bio (although it is listed by the Sierra Club as one reason for their endorsement).

Why would such a huge achievement, so relevant to major public pipeline debates, be virtually a secret? What explains that? What am I missing? Am I exaggerating the significance of gas pipeline debate? Or misconstruing the legal issues in the case?

Does the power of the gas industry keep that history of an extremely rare environmental permit denial under the radar screen?

The Connecticut permit denial was upheld by the US Court of Appeals and the gas industry’s appeal was rejected by the US Supreme Court.

Gov. M. Jodi Rell and AG Richard Blumenthal are hailing the U.S. Supreme Court’s refusal to hear an appeal regarding the planned construction of the Islander East pipeline across Long Island Sound.

As such, they are declaring a complete victory in the long-running battle against the natural gas pipeline.

“First Broadwater. Now Islander East,” Rell said in a statement released by spokesman Rich Harris. “With today’s Supreme Court announcement, we have succeeded in turning back two ill-conceived energy projects that would have caused irreparable harm to Long Island Sound.”

She added, “Our state and this region do need reliable energy sources. However, we can – and must – find ways to meet our energy needs without sacrificing unique and precious natural resources like Long Island Sound. Neither Broadwater nor Islander East met that test, and we are all better off without them.”

Blumenthal declared that the Islander East is now “officially dead” after a battle that lasted nearly 10 years.

“This sweeping victory is the death knell for this hugely destructive project, dealing it the demise it so richly deserves,” Blumenthal said. “This immensely invasive, intrusive pipeline was the worst place and worst case for Long Island Sound and its fragile environment. The U.S. Supreme Court rightly let stand a powerful Court of Appeals decision citing the environmental destruction certain to result from dredging, drilling, plowing and backfilling to lay this pipeline.”

Very few cases have all these kind of high profile features – and enable such targeted activist campaigns and political accountability. (“We call on Gov. X to deny Clean Water Act permits….”)

And its not like 49 other Governors, Attorneys General, and State environmental agencies are all lined up and denying environmental permits that kill multibillion interstate gas infrastructure investments.

And federal regulation by FERC is a joke:

we were unable to find a single FERC denial of an application for a Certificate of Public Convenience and Necessity for an interstate gas transmission line.

So, with this kind of profile, the Connecticut case should be a big deal strategically, politically and legally, no?

So why is the case literally invisible?

Why are pipeline opponents investing so much time and resources in the failed FERC process when State Agencies can deny permits to kill pipelines?

Why do I get no engagement when I asked these questions to pipeline opponents?

Could this be why? A 2001 NY Times story:

• Conservationists Are Divided on Cross-Sound Gas Pipeline

A PROPOSAL to build a 40-mile-long natural gas pipeline across Long Island Sound has divided conservation groups in New York and Connecticut, not just along state lines but along philosophies. At the heart of the disagreement is whether the project will threaten the environment or improve it.

On the Connecticut side are the organizations that contend the pipeline will destroy oyster and lobster habitats and fish breeding areas and will endanger delicate wetlands. Many of the groups that oppose the gas pipeline also opposed the proposal for a cross-Sound electrical cable that was rejected by regulators in March, primarily because of environmental issues.

”It’s very unlikely they could put a gas pipeline across the Sound in a way that would be environmentally acceptable,” said Barbara C. Gordon, the executive director of the Connecticut Seafood Council, an industry group. ”There are alternatives for utility companies, and there is no need to damage the environment.”

On the other side of the Sound are some environmental advocates who say that growing electricity demands will require new power plants and that gas-fired generators will produce much less air pollution than coal- or oil-fired plants.

”From an energy point of view, we support it,” said Neal M. Lewis, the executive director of the Long Island Neighborhood Network, a grass-roots citizens’ group with an office in Massapequa. ”What we’re calling for in the short term is more gas to replace the oil-burning plants on Long Island.”

I really hope not – I thought we were all past the “bridge fuel” bullshit.