In an order dated January 16, 2013, Judge Eileen Rakower of the New York State Supreme Court dismissed an Article 78 petition challenging the Hudson River Park Trust’s lease of an easement for a portion of a natural gas pipeline entering Manhattan through Hudson River Park. The lease – along with the pipeline’s route into Manhattan – was challenged by several environmental groups and individuals, who argued that the Trust was required to conduct an environmental review under the State Environmental Quality Review Act (“SEQRA”) of the pipeline and its connection to Con Edison’s pipeline network. The petitioners also argued that leasing an easement beneath the Park violated the public trust doctrine and provisions of the Hudson River Park Act that restrict the uses to which certain areas of the Park may be put.
Judge Rakower first noted that the Federal Energy Regulatory Commission (“FERC”) had analyzed the environmental impacts of the proposed pipeline under the National Environmental Policy Act and issued an Environmental Impact Statement (“EIS”). That EIS concluded that the local pipeline connection to Con Edison’s network was outside of FERC’s jurisdiction, but nevertheless gave some consideration to the cumulative impacts of connection to Con Edison’s network. After issuing the EIS, FERC approved the route of the pipeline through Hudson River Park. The Trust then negotiated the challenged lease with the pipeline developer.
Judge Rakower concluded that, under the federal Natural Gas Act, FERC had exclusive jurisdiction over the siting of the pipeline, and that any challenges to the siting decision – or the Trust’s lease of the right-of-way through Hudson River Park in accord with that decision – must be brought in federal court. Judge Rakower also ruled that state-law environmental review of the pipeline under SEQRA was preempted by the Natural Gas Act. The court therefore dismissed the petition.
For more information on the Court’s decision, contact Elizabeth Knauer.