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NY STATE DEPT. OF ENVTL. CONSERVATION v. FERC

Nos. 19-1610-ag (L), 19-1618-ag (Con) August Term 2020.

991 F.3d 439 (2021)

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, and Sierra Club, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, National Fuel Gas Supply Corporation and Empire Pipeline, Inc., Intervenors.

United States Court of Appeals, Second Circuit.

Decided March 23, 2021.

Attorney(s) appearing for the Case

Brian Lusignan , Assistant Attorney General, ( Letitia James , Attorney General, Barbara D. Underwood , Solicitor General, Andrea Oser , Deputy Solicitor General, Frederick A. Brodie , Assistant Solicitor General, Lisa M. Burianek , Deputy Bureau Chief, on the brief), for Petitioner New York State Department of Environmental Conservation

Moneen Nasmith ( Meagan Burton , on the brief), Earthjustice, New York, NY, for Petitioner Sierra Club.

Susanna Y. Chu , Attorney ( David L. Morenoff , Acting General Counsel, Robert H. Solomon , Solicitor, on the brief), Federal Energy Regulatory Commission, Washington, DC, for Respondent

Eamon P. Joyce , Sidley Austin LLP, New York, NY ( Tobias S. Loss-Eaton , James R. Wedeking , Daniel J. Hay , Sidley Austin LLP, Washington, DC, on the brief), for Intervenors.

Before: Livingston, Chief Judge, Parker and Lynch, Circuit Judges.

The New York State Department of Environmental Conservation ("DEC") and the Sierra Club challenge two orders of the Federal Energy Regulatory Commission ("FERC"). These orders determined that the DEC waived its water quality certification authority under Section 401 of the Clean Water Act by failing to act within...

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