In August MDN brought you the sad news that the U.S. Court of Appeals for the Second Circuit has ruled against the Constitution Pipeline and their lawsuit against the Cuomo-corrupted New York Dept. of Environmental Conservation (see Court Rejects Constitution Pipe’s Case Against NY DEC; Now What?). To boil it down to its essence, the court said the DEC had the right to reject issuing stream crossing permits for the critically-needed pipeline, even though it would shut down the project. The legal upshot is that individual states have the right to stop a federally-approved project. Which appears to upset the legal principle that federal law trumps state law, and state law trumps local law. It’s always been that way. Until now. Given the Second Circuit’s ruling, some energy attorneys were whispering it’s likely “lights out” for the Constitution (see Energy Attorneys Hint it’s ‘Lights Out’ for Constitution Pipeline). However, that pessimism may be premature. Last Friday attorneys for the Constitution filed a request with the Second Circuit for a rehearing of the case–this time before ALL of the active judges sitting on the Second Circuit bench–something called an en banc hearing. Their reasoning? If the original decision stands, it will overturn decades of established legal principle and (our words) neuter FERC’s ability to approve pipeline projects…
