May 20, 2020 SNYFGP Letter to Judge Bellsito, Case 19-T-0069

SNYFGP Letter to Judge Bellsito Case 19-T-0069 (5 20)

 

May 21, 2020

VIA ELECTRONIC SUBMISSION

 Administrative Law Judge Anthony Belsito
State of New York Public Service Commission
Empire State Plaza
Agency Building 3
Albany, NY 12223-1350

Re: Case 19-T-0069 – Application of Niagara Mohawk Power Corporation d/b/a National Grid for a Certificate of Environmental Compatibility and Public Need Pursuant to Article VII of the Public Service Law for the E37 Pipeline Reliability and Resiliency Project in the Town of Bethlehem, Albany County and the Towns of East Greenbush and North Greenbush, Rensselaer County

Dear Judge Belsito:

I represent Stop NY Fracked Gas Pipeline (“SNYFGP”) in the above entitled matter. This letter is intended to update your honor as to several developments that are relevant to the Public Service Commission’s (“Commission”) consideration of the application by Niagara Mohawk Power Corporation d/b/a National Grid (“National Grid” or “the Applicant”) for a Certification of Environmental Compatibility and Public Need in this case (the “E37 Application”).

  1. Recent Decisions of the Siting Board and the Department of Environmental Conservation Director of Environmental Permits As Well As 2020 State Energy Plan Amendment Support SNYFGP’S Previous Contention That the Climate Leadership and Community Protection Act Requires Disapproval of the E7 Application, Absent a Climate Analysis

Recent decisions of the Article 10 Siting Board (“Siting Board”), the Department of Environmental Conservation (“DEC”) Director of Environmental Permits as well as a 2020 amendment to the State Energy Plan, all strongly support SNYFGP’s previous contention that, absent an analysis as to whether the E37 Reliability and Resiliency Project (“E37 Project”) is consistent with the Climate Leadership and Community Protection Act (“CLCPA”), the E37 Application should be rejected. Specifically, as SNYFGP stated in a June 27, 2019 letter to your honor, Section 7(2) of the CLCPA, sometimes known as the CLCPA “climate screen,” directs “all” state agencies, including the Commission, to consider whether decisions on “permits, licenses, and other administrative approvals and decisions” are “consistent with or will interfere with the attainment” of the greenhouse gas (GHG) reduction limits in the CLCPA. If they are inconsistent, we stated, section 7(2) requires a detailed statement of justification as to why the limits may not be met and an identification of “alternatives or greenhouse gas mitigation measures to be required where such project is limited.”[1]

The Siting Board has made clear its view that state agencies must consider a project’s impact on GHG emissions limits before awarding permits and other approvals. In response to an application by Danskammer Energy to repower its existing 532 MV generating facility in the Town of Newburgh in Orange County (“Danskammer Application”), the Siting Board issued a Deficiencies Letter, indicating that the Danskammer Application was not in compliance with the Public Service Law, as it lacked an “assessment of how the issuance of a Title V permit modification by the DEC would be consistent with the greenhouse gas emissions limits” in the CLCPA and that it also lacked “an assessment of how the Siting Board’s issuance of an Article 10 Certificate for the Project would be consistent with the greenhouse gas emissions limits” in the CLCPA.[2]

Moreover, in his decision denying an application for a Section Water 401[3] Water Quality Certification (“WQC”) for the proposed Northeast Supply Enhancement Project (hereinafter, “Williams Pipeline” or the “Pipeline”), DEC’s Director of the Division of Environmental Permits rejected the application in part because the Pipeline “would be inconsistent with or interfere with the Statewide GHG emission limits and other requirements established in the … [CLCPA], without the identification of additional alternatives or GHG mitigation measures.”[4] The Director continued that:

[w]hile not necessary for the Department’s determination, this inconsistency further supports the Department’s determination… This is especially true given that the State should not sacrifice its water quality, sensitive habitats, and important biological resources for a project that would have adverse climate impacts and one that runs counter to the State’s policy to significantly reduce GHCs by transitioning away from the use of natural gas to produce electricity.[5]

Finally, a 2020 amendment to the State Energy Plan, which, under state law, sets the state’s energy policies,[6] provides that the “Public Service Commission is directed to implement the clean energy program and technology goals stipulated in the CLCPA.”[7] By virtue of the reasoning in the decisions discussed herein, absent a climate screen in compliance with CLCPA Section 7(2), the E37 Application should be rejected.[8]

  1. The Climate Leadership and Community Protection Act Requires Disapproval of the E37 Application, Absent an Equity Analysis

Section 7(3) of the CLCPA provides that “[i]n considering and issuing permits, licenses, and other administrative approvals and decisions…all state agencies, offices, authorities and divisions shall not disproportionately burden disadvantaged communities…”. Given the applicability of CLCPA to this proceeding, SNYFGP requests that your honor order National Grid to determine whether the E37 Project impacts any disadvantaged communities pursuant to the CLCPA, and if so, to inquire as to whether any such communities are disproportionately burdened. SNYFGP respectfully asserts that it is the responsibility of the Applicant, as a condition of the approval of the E37 Application, to establish either that Section 7(3) is inapplicable (due to the lack of any “disadvantaged community” impacted by the Project) or that no impacted disadvantaged community is disproportionately burdened.

  • The COVID Pandemic and the Resulting Economic Decline Requires a Reconsideration of the Applicant’s Inadequately Supported Growth Forecast

SNYFGP continues to assert that National Grid’s projection of an annual rate of growth of 1.1% was “insufficiently supported” to permit the Commission to approve the E37 Application.[9] The already unsupported growth forecast in National Grid’s E37 Application is even more questionable in light of the COVID pandemic. In a report required pursuant to a Commission settlement, National Grid conceded that some lessening of natural gas demand in the downstate New York region was to be expected due to COVID, at least in the near term. National Grid stated that:

While it is anticipated that the economy will open back up over the long-term, some near-term reduction in Design Day natural gas is expected, and there could also be an impact to longer term forecasts.[10]

Given that natural gas demand has presumably also declined in the service territory of the E37 Project, before the Commission can even consider approving the E37 Application, we request that National Grid be directed to reexamine its original growth projections, in light of the pandemic and the resulting economic dislocation that all regions of the nation are presently facing and can be expected to face for months if not years. As the DEC Director of Environmental Permits stated in his decision in regard to the WQC for the Williams Pipeline, a reduction in projected natural gas demand due to the COVID pandemic might be relevant as to whether there are alternatives to a proposed pipeline that produce less GHC emissions and are therefore more consistent with the CLCPA.[11]

Thank you once again for the opportunity to offer the views of SNYFGP on this matter. Please do not hesitate to contact me at bcohen@citizenactionny.org or at (518) 265-6183 concerning the subjects of this letter and anything else in regard to the instant proceeding.[12]

Very truly yours,

 

Bob Cohen, Esq., Policy Director Citizen Action of New York
Attorney for Stop NY Fracked Gas Pipeline

cc:         DPS Staff Counsel Graham Jesmer (via email)
DPS Staff Counsel Cassandra A. Partyka (via email)
All persons listed under “Party List” on DMM for this proceeding

[1] Case 19-T-0069, Letter of SNYFGP Attorney Bob Cohen to Administrative Law Judge Anthony Belsito, June 27, 2019, at 4 (“SNYFGP June 27, 2019 Letter”), quoting the Climate Leadership and Community Protection Act, Chapter 106, Laws of 2019, § 7(2).

[2] Case 19-F-0325, Siting Board Deficiency Letter, February 10, 2020, at 2.

[3] 33 U.S.C. § 1341.

[4] Notice of Denial of Water Quality Certification, Northeast Supply Enhancement Project, May 15, 2020, at 15, available at: https://www.dec.ny.gov/docs/permits_ej_operations_pdf/nesewqcdenial05152020.pdf.

[5] Id., at 16.

[6] See Energy Law §6-104(5)(b) (energy-related actions or decisions must be “reasonably consistent” with policies and “energy planning objectives” in the State Energy Plan, absent “material and substantial change” coupled with a statement explaining the basis for the finding).

[7] Amendment to the 2015 State Energy Plan, amendment to Volume 1, Page 110; 2015 Plan and 2020 amendment available at: https://energyplan.ny.gov/.

[8] Curiously, in another proceeding involving the Williams Pipeline, National Grid appeared to concede that gas pipeline proceedings are subject to the CLCPA, but, without a clear explanation, declined to engage in a climate analysis. In a report required pursuant to a settlement regarding the Williams Pipeline (“Williams Report”), National Grid stated that it was “committed to supporting achievement of the CLCPA,” but stated that “the CLCPA time horizon out to 2040 for interim goals and 2050 for final goals was beyond the scope of our analysis.” National Grid, National Gas Long-Term Capacity Supplemental Report, May 2020, at 74-75 [emphasis added], https://millawesome.s3.amazonaws.com/Downstate_NY_Long-Term_Natural_Gas_Capacity_Supplemental_Report_May_8_2020.pdf; see also, Case 19-G-0678, Comments of NY Renews, Proceeding on Motion of the Commission to Investigate Denials of Service Request by National Grid USA, The Brooklyn Union Gas Company d/b/a National Grid NY and KeySpan Gas East Corporation d/b/a National Grid, at 7.

[9] SNYFGP June 27, 2019 Letter, at 2-3.

[10] Williams Report, at 41.

[11] SNYFGP has previously pointed to National’s Grid’s inadequate consideration of non-pipeline alternatives, including renewable energy options and efficiency measures. See, for example, SNYFGP June 27, 2019 Letter, at 4-5.

[12] I am working at home due to the COVID pandemic for an indeterminate period of time. Therefore, until further notice, kindly communicate with me either by email or by cell at (518) 265-6183.