State’s Mixed Energy Message an Issue in Fight Over Upstate Pipeline

Behind a gabled mansion in Orange County, with open, red shutters and a Christmas wreath on the door, only twenty feet into the pristine New York forest, about two thirds of the way up an evergreen tree, there is an eagle’s nest. And this nest has become the most recent focal point in a drawn-out war over the building of a natural gas pipeline. On Twitter. In court. In Washington and Albany.

The project in dispute is a 7.8-mile-long natural gas pipeline, known as the Valley Lateral Project – which will connect to and service a controversial 650 megawatt natural gas power plant. This power plant, to be run by Competitive Power Ventures, is designed to provide electricity to New York City. After a bureaucratic and judicial battle that has gone on for over two years, the plant itself is now nearly complete and a federal appeals court lifted a stay on the pipeline project earlier this month. Millennium Pipeline Company began construction on the pipeline on December 8th, 2017.

But just around the same time, the eagle’s nest was discovered in the planned path of the pipeline, complicating an already complicated situation.

Local activists see this as just one more reason not to move forward. On December 9th, Pramilla Malick, an activist and organizer from the group Protect Orange County, pointed out to me what she called, “freshly cut twigs,” and “fish scales and bones,” directly beneath the tree. She said that it was proof that the nest overhead was indeed an active bald eagle’s nest.

Lucious Greene, a 72-year-old superintendent, lives in the house by the eagle’s nest. “During this summer I saw them maybe four or five times,” he said of the eagles. “Last time I saw them it was two. I saw them fly out of their nest and fly this way,” he said, pointing off toward the road.

Active nests are indeed protected under the federal Bald and Golden Eagle Protection Act; those who “molest” or “disturb” them can face fines up to $200,000. But the U.S. Fish and Wildlife Service says a bald or golden eagle nest is “active” only if it is “characterized by the presence of one or more eggs, dependent young, or adult eagles on the nest in the past 10 days during the breeding season.” Unfortunately for the activists, the breeding season for bald eagles is considered to run from January 1st to September 30th. Even if there are bald eagles flying into and out of the nest, and even if those bald eagles do make that nest their home – which Millenium spokeswoman Michelle Hook insists they do not – it doesn’t really matter, because a nest is not considered in use outside of the breeding season.

“This is not a believe versus not believe,” Michelle Hook, director of public relations for Millennium Pipeline Company, said over the phone. “There’s expert opinion and then there are people who have an agenda who are trying to stop our project.”

The safety of the eagles is only one of the ongoing issues in the pipeline dispute. Though the eagles are important to activists, they are also a tactical strategy, used to attempt to stop construction on the pipeline. The larger battle is over the future of New York’s energy, and how it is provided.

“The big issue is climate change,” said Richard Webster, who works for Riverkeeper, an environmental organization that strives to protect the Hudson River and New York watersheds. “Fracked gas will come from Pennsylvania through this pipeline, to this brand new power plant,” he added, referring to hydraulic fracturing, the highly controversial method by which gas is extracted from shale rock. “Our position is that we need no new fossil fuels in the Hudson watershed. The state’s policy is to move to cleaner energy. There’s high-level policy in place but it’s not being implemented on the ground.”

The high-level policy that Webster is referring to is the 2015 New York State Energy Plan, whose stated goal is to decrease total carbon emissions 80 percent by 2050, generate at least 50 percent of electricity from renewable energy sources by 2030, and to decrease overall energy consumption levels by 23 percent from 2012 levels.

Climate experts are skeptical that this policy can be maintained with projects like the CPV power plant going up in New York – and projects like the pipeline which will support it. “The problem is, you can bring more renewables online, but if you’re building fossil fuel power plants faster than you’re building the renewable generators of electricity then getting to that 50 percent figure becomes a task that fades off into the distance,” said Keith Schue, an electrical engineer and environmental activist.

“Frankly, I’m very concerned we’re not going to make it,” Schue said of the State Energy Plan’s goals.

A legal battle and a governor’s position

Since 2015, the fate of the pipeline has been bogged down in a long, drawn-out battle between federal and state regulators. On the one hand the Federal Energy Regulatory Commission has jurisdiction over interstate transportation of natural gas; on the other, the state Department of Environmental Conservation must determine that the project meets the requirements of the Clean Water Act. It’s the DEC’s responsibility to make sure that federally approved projects don’t violate clean water standards. The DEC said in their statement on denying a water quality permit to Millennium that the pipeline would go below Rutgers Creek and seven other federally regulated streams.

In mid-2017, after a federal court case, Millennium bypassed the DEC for the water-quality permit. FERC ruled with the company that the DEC had taken too long to either accept or reject the water-quality application, and that Millennium could begin building. New York’s Attorney General Eric Schneiderman requested an emergency stay on construction, which was granted.

Then, early this month, the stay was lifted. Within two days, on December 8th, Millennium was felling trees in Wawayanda, New York.

Though the battle between FERC and the DEC over jurisdiction is expected to continue in court in January, activists argue that with so much of the pipeline already built, it may already be too late.

The fight over CPV and the pipeline embody Gov. Cuomo’s convoluted stance on energy issues. The two-term governor has vacillated on pipelines and natural gas projects. It took him years – and a push from 2014 gubernatorial challenger Zephyr Teachout – to take a stand against hydraulic fracking in New York State. Under Cuomo, the DEC has denied permits for several natural gas pipelines, like Millennium.

These stands against pipelines are confusing given the state’s approval of plants’ like CPV, which require pipelines to bring them natural gas. It’s environmental doublespeak. Similarly, Cuomo opposes fracking in New York, but says “no such policy exists” that stops New York from using gas fracked in other states, like Pennsylvania. Schue refers to this as the state’s “frack your neighbor” policy.

Cuomo, who took office as a business-friendly governor, has certainly moved left on environmental issues, as the State Energy Plan makes clear. But it’s not clear that he is willing to spend the political capital required to achieve the plan’s goals.

A tricky shift

Imagine New York’s electricity power as a pie chart split three ways, Schue says, between renewable energy sources, nuclear power and fossil fuels. Now consider that the state is retiring its petroleum and coal plants as well as some of its nuclear plants, which generate 31 percent of the state’s electricity. The loss of that power creates a gap that must be filled. Even if the share being produced by renewables rises from its current 25 percent Schue says, natural gas plants like CPV will also have to go up from their percentage of around 40 percent – and the state’s carbon footprint would continue to increase. Basically, the state needs not just to increase its renewables, but also to reduce its dependence on fossil fuel burning plants.

Anthony Ingraffea, a professor of engineering emeritus at Cornell, has been a vocal opponent of the CPV plant as well as Millennium’s pipeline project. “The operation of the CPV power plant – one of the largest gas-fired power plants to operate in New York if it goes into production – would substantially increase greenhouse gas emissions, both carbon dioxide and methane,” Ingraffea says.

“Any increase in greenhouse gas emissions would preclude the state from meeting its greenhouse gas emission goals in its renewable energy standards.”

With most of the state’s coal power going offline, carbon emissions have been mostly on the decline since 1990. But if Cuomo follows through on his proposal to shut down the 2,000 megawatt nuclear-power plant at Indian Point, Ingraffea worries that what looks like a steep decline will begin to climb again. Nuclear plants – which are low generators of carbon emissions – are likely to be replaced by natural-gas burning ones that emit greenhouse gasses like carbon dioxide and methane.

Cuomo’s goal of shutting down dirtier coal plants, ironically, leads to a demand for more natural gas plants, which have higher capacity factors than wind and solar, because of course, the sun does not always shine and the wind does not always blow.

“We are now replacing the carbon dioxide that used to come from burning petroleum and coal with carbon dioxide coming from burning an increased amount of natural gas,” says Ingraffea.

Hook, Millennium’s spokeswoman, argues that natural gas power plants are necessary in New York because so many people need the power. “Sixty percent of New Yorkers use natural gas to heat their homes,” she said.

In an interview with The Buffalo News, Cuomo said he sees natural gas as a sort of bridge from nuclear and coal power to renewables. “I don’t think you can get from here to there without using natural gas.”

Hook maintains that the CPV power plant will replace natural gas plants built in the 1960s and ’70s. She compares the old plants to a Buick Pickup – and the new plant to a Prius. But advocates reject that logic.

“That’s the wrong comparison,” Ingraffea countered when presented with Hook’s argument. “We’re not comparing CPV to a natural gas power plant from the 1970s. We’re comparing it to a solar field or a wind farm.”

Though Ingraffea admits that CPV may be less destructive to the environment than old coal and petroleum plants, which are being decommissioned in New York, his argument is that there should be no new fossil fuel plants if New York is to reach its goal set out in the State Energy Plan.

Solar fields and wind farms do not emit any carbon. Any negative environmental effect they have occurs in the building process. But Hook does claim that it would be necessary to cut down 10,000 acres of trees to create a wind farm that would generate only 120 or 125 megawatts of power, compared to CPV’s 650 megawatts.

According to graphs released by the U.S. Energy Information Administration, a steady decline of carbon emissions is necessary for New York State to reach its goal of 80 percent reduction by 2050. The graph also shows that as of 2014, carbon emissions from the state’s electricity sector are actually rising.

The construction of a new natural gas power plant in a deep blue state like New York is due to the fact that New York – New York City especially – demands so much energy on a day to day basis. Natural gas power plants are business as usual; they are the status quo, and it would take enormous political pressure to stop the building of these plants and focus solely on renewable energy.

Link to corruption charges

Besides the convenience of natural gas plants, as well as the political clout of the natural gas industry, activists suggest that corruption at the highest levels of government in New York relates directly to the approval of the CPV power plant.

CPV donated over $200,000 on lobbying and donations to Cuomo’s campaign. Meanwhile, one of Cuomo’s top political aides and close personal friends, Joe Percoco, is the subject of a corruption probe by US Attorney General Preet Bharara, after his wife allegedly received more than $100,000 dollars in consulting fees from the owner of CPV’s power plant.

While it’s not clear if Percoco secured approvals of CPV’s plant, and his trial is still pending, the fact is that the CPV plant received several key state approvals before the news of the probe broke and Cuomo’s office cut off contact with the company.

Cuomo denied knowledge of any wrongdoing, and pledged full support of the Attorney General’s probe.

Now, the power plant is nearly finished, and construction has begun on the pipeline that will feed it. Neither the corruption probe, the existence of the bald eagles’ nest, nor the grave threat to the state’s climate change goals has managed to stop the building.