Environmental groups’ lawsuit against New York state for approving a permit for a new natural gas pipeline aims, in part, to home in on a key argument: The state rejected this permit twice before.
Earthjustice, the Natural Resources Defense Council, and others filed a petition for review Tuesday in the US Court of Appeals for the Second Circuit over the New York State Department of Environmental Conservation’s issuance earlier this month of a water quality permit for a proposed
While a brief outlining the environmental groups’ specific legal arguments has yet to be filed, lawyers for the NRDC and Earthjustice in interviews explained their thinking behind the legal challenge.
“Twice this project has been rejected for failure to show compliance with state water quality standards,” said Jared Knicley, managing litigator for the NRDC. “Nothing has changed since those rejections, nothing factual, nothing legal.”
“A lot of this hinges both on whether the conclusion that this will satisfy water quality standards is accurate and whether or not their excuses for why they made a 180-degree turn are legitimate,” said Susan Kraham, managing attorney at Earthjustice.
The pipeline would route natural gas from Pennsylvania through New Jersey to the New York City area. More than 17 miles of the pipeline is slated to go under Raritan Bay and Lower New York Bay near Staten Island.
The DEC, which said Tuesday it doesn’t comment on pending litigation, pointed out earlier this month there were different considerations to take into account when reviewing the application for the pipeline project after it rejected it years ago.
It cited 2023 guidance from the Environmental Protection Agency related to the Clean Water Act, other similar projects that have been built, public comments, and what it called “substantive revisions to ecological considerations,” like an adjustment related to hard clam density.
A spokesperson for the DEC didn’t elaborate, when asked, about what the agency was specifically citing in the 2023 EPA guidance. Earthjustice’s Kraham called the DEC’s mention of that guidance a “total red herring” and said the agency “needed an excuse to change their mind.”
Then and now
The DEC previously denied approving the water quality permit for the pipeline project twice, first in 2019, and then in 2020, saying the company hadn’t shown it would meet “applicable water quality standards.”
One major difference between 2020, when the project was last rejected for a water quality permit, and now is who is in the Oval Office. It’s been reported that the current Trump administration allowed construction on Empire Wind 1, a major offshore wind project in the New York area, to start up again amid New York Gov.
“While I have expressed an openness to natural gas, I have also been crystal clear that all proposed projects must be reviewed impartially by the required agencies to determine compliance with state and federal laws,” Hochul said in a statement to reporters who inquired on Nov. 7, the day the DEC approved the permit. “I am comfortable that in approving the permits, including a water quality certification, for the NESE application, the DEC did just that.”
The governor didn’t lean on the DEC to approve the permit, a person familiar with the matter said. The DEC didn’t respond to requests for comment on whether a deal with President Donald Trump and Hochul was why the agency approved the permit.
The environmental groups’ lawsuit could serve as a test for how strongly the DEC can justify its change of course.
“When a permit is denied three times, and then suddenly granted, it certainly raises eyebrows,” said Michael Gerrard, founder and faculty director at Columbia Law School’s Sabin Center for Climate Change Law.
Williams, the company behind the project, said in a statement the state’s “approvals followed a rigorous, science-based review under state and federal law.”
“We remain confident in the strength and legal durability of the New York State Department of Environmental Conservation’s approvals for the NESE project,” the company said.
The state, in issuing the permit earlier this month, laid out several “environmentally protective conditions” the project has to have, including having third-party monitors on site, keeping contaminants from impacting water quality in the Bays and “minimizing and mitigating impacts” on hard clams, winter flounder and others.
The NRDC and Earthjustice and others also sued the New Jersey Department of Environmental Protection over approving water quality permits for the same project. The DEP on Tuesday declined to comment.
The case is NY/NJ Baykeeper v. N.Y. Dept. of Envtl. Conservation, 2d Cir. App., petition for review filed 11/18/25.
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