This article originally ran on Forbes.com on February 10, 2026. All rights reserved.
For the last decade, the New York State Department of Conservation (DEC) has been trying to usurp the power of the Federal Energy Regulatory Commission (FERC) by withholding the granting of state certifications that are otherwise allowed under Section 401 of the Clean Water Act (CWA) pertaining to the siting of interstate oil and gas pipelines through any “waters of the United States.” While previously the right obligation of states to issue CWA certifications had been considered to be a largely administrative, if not perfunctory, task, then New York Governor Andrew Cuomo changed all of that in 2016 when he determined – as a matter of broad state policy and not necessarily any project specific analysis – that, henceforth, New York State would no longer issue Section 401 Permits for any fossil fuel pipeline whatsoever. (Source).
The most immediate and practical effect of the Governor’s action was to prevent the siting and construction of an approximately 125-mile pipeline originating in the natural gas fields of Northeastern Pennsylvania and extending to near Albany, in upstate New York. From there, had it been built, the pipeline would have further connected to the currently existing Tennessee Pipeline, thereby allowing natural gas to flow directly and freely into New England from the Marcellus Shale region in Northeastern Pennsylvania. In effect, by declining to issue a Section 401 certification for the project, the DEC, as the Governor’s surrogate, was deciding, if not dictating, oil and gas policy for all of New England, whether that region wanted and needed the natural gas, or not.
The Trump Administration has put pressure on New York Governor Kathy Hochul to relent on that stance. In May 2025, the Administration sought to link approval of the Constitution Pipeline with approval of the Empire Wind offshore wind farm off the coast of New York State. (Source). In November 2025, the DEC relented on another pipeline known as Northeast Supply Enhancement (NESE) and issued a Section 401 Certification or permit to that project.
Buoyed by that development, Williams Corporation, owner of the Constitution project, resubmitted its proposal to FERC on December 19, 2025. On January 28, 2026, however, the DEC filed with FERC to block the project a second time, arguing that should FERC issue the necessary Certificate of Public Convenience and Necessity, it would illegally usurp New York State’s authority under Section 401. (Source). The DEC argued in its filing that :"Constitution is attempting to bypass critical environmental reviews and undercut New York State’s regulatory authority." Never mind the fact that, since then Governor Cuomo’s initial refusal to issue a Section 401 Certification under the CWA back in 2016, it remains questionable that a state even has the power to override and thwart FERC’s determinations in a case like this, at all.
In essence, the parties are back to where they had been initially, with one important difference. The Trump Administration has now been intervening to force the pipeline through, notwithstanding DEC’s most recent disapproval of the Constitution project. Specifically, three days after the Wiliams petition was filed, on December 22, 2025, the Trump Administration issued a stop order to every wind project then under construction off the Northeast coast of the United States. (Source).
As determined by the D.C. Circuit Court of Appeals, FERC now must determine whether …“the public benefits outweigh the project’s adverse impacts.” For her part, Governor Hochul has taken an intensely adversarial role. In a statement, she said “The Williams Companies is attempting to construct a pipeline through the heart of our state without undergoing state environmental review.”
“While I have been open to natural gas as part of an all-of-the-above energy strategy, I have been clear that any projects must be reviewed impartially by state agencies and comply with all applicable laws,” Hochul said. “The fact is, DEC determined three times that Williams’ application for the proposed Constitution pipeline was incomplete and inadequate. Just last November, Williams withdrew its application to the state for this project but is now claiming it did not need to apply at all. I will fight any attempt to circumvent our state’s authority or undermine our clean water laws.” (Source).
Should Governor Hochul and her DEC eventually prevail, it will again leave New England vulnerable, as there is no readily accessible or otherwise viable method to transport additional natural gas into New England, except by going through New York State via an extended pipeline. Truck transport is inherently dangerous and expensive, there are few train options, and the Jones Act limits the availability of transport by sea. Meanwhile, on January 30 of this year, Massachusetts Governor Maura Healey approved contracts to ensure gas supplies from an expansion of an existing segment of Enbridge’s Algonquin pipeline, a 1,100-mile pipeline that currently transports natural gas to New England from the Gulf of Mexico and flows through New York State. (Source). However, a key difference between the two situations is that, with the Enbridge Algonquin pipeline, the ultimate gas delivery costs are likely to be higher than by merely adding an extension to the existing Constitution pipeline because of the longer distance that the gas needs to travel to get from where it is pumped to where it is consumed. The bottom line is that both, Massachusetts, and New England as a whole, remain subject to the overreaching decisions of New York State that impact regional energy infrastructure, which appears to be contrary to some of the very reasons why FERC was created by Congress in 1977, in the first place, following the Arab Oil Embargo of 1973.
As of February 2026, during one of the coldest winters in recent memory, we are back to a fight between a state and the federal government over who, in fact, controls interstate energy policy and energy conveying infrastructure, after all. The whole matter will likely wind up before the United States Supreme Court to make the final determination, while meanwhile, those in places like New England who actually need the energy at a reasonable cost, will be left to continue shivering from the cold weather, to watch their budgets get swallowed by the extra energy costs, and to argue about esoteric legal issues that many have thought were fully settled decades back, with Congress’s creation of FERC in 1977.
