Commerce Secretary's 2003 Rejection of Gas Pipeline Appeal for Hudson River Doesn't Bode Well For Broadwater
I didn't follow that Millennium Pipeline case very closely, but Denise Civiletti went back and found out what happened when Millennium appealed the Department of State's decision to the U.S. Secretary of Commerce, as Broadwater now has the right to do.
The precedent isn't good for Broadwater. The Secretary of Commerce rejected Millenium's appeal on grounds that seem as if they'd apply to Broadwater's appeal, and the courts then upheld the secretary's decision. Here's what Civiletti wrote, in the Suffolk Times:
Under federal law, Broadwater has 30 days to appeal to the U.S. secretary of commerce to override N.Y. state's April 10 ruling that the project is inconsistent with the state's coastal zone management policy.
The secretary of commerce, Carlos Gutierrez, can override the state's consistency ruling if he determines that the Broadwater plan is "consistent with the objectives of the CZMA," or if the project is "necessary in the interest of national security."
In 2003, the commerce secretary rejected the consistency appeal of Millennium Pipeline Company, whose plans, like Broadwater's, had been found inconsistent with New York's coastal management policies by the New York secretary of state. The secretary of commerce refused to override the state's determination, ruling that a project is consistent with the objectives of the CZMA only if it furthers the national interest articulated by Congress in a significant way, and if the national interest outweighs the activities' adverse coastal effects, and there is no reasonable alternative available. "A negative finding for any of the three elements will preclude [the] project from being consistent with the objectives of the CZMA," the commerce secretary wrote. In the Millennium case, he found that there was a reasonable alternative to the proposed project. He also refused to allow the project on the grounds of "national security," saying the record must show that "a specific impairment of a national security interest would result if [the] project were not permitted to go forward as proposed." General statements that the project is important to the national interest are not enough, he ruled.
The commerce secretary's Millennium ruling was upheld by the federal district court in Washington, D.C., in 2006.