The legal system should protect private property
From an Article by Rick Miller, Olean NY Times Herald, November 15, 2018
A state appellate court ruled Friday that National Fuel Gas Corp. could not use eminent domain proceedings to cross a Clarksville couple’s property for the Northern Access Pipeline from McKean County, Pa. to Western New York.
The Appellate Division, Fourth Judicial Department overturned an earlier State Supreme Court ruling granting eminent domain powers to National Fuel Gas in order to cross the 200-acre parcel owned by Joseph and Theresa Schueckler. The property lay in the path of the proposed 97-mile $455 million Northern Access pipeline.
While National Fuel officials are still hopeful about the project’s future, the Schueckler’s attorney Gary Abraham thinks differently. “The pipeline is dead,” he said.
Dozens of streams and creeks are also in the pipeline’s path, which require DEC permission to cross. The DEC asked National Fuel Gas to use horizontal drilling to minimize stream disruptions. The company said it was unnecessary in most streams.
The 12-page ruling acknowledges the state Department of Environmental Conservation (DEC) denied a Water Quality Certificate under the federal Clean Water Act, which National Fuel Gas has challenged in the Second Circuit U.S. Federal Court in New York City.
National Fuel Gas claimed DEC took longer than the one year allowed to review the company’s application for a Water Quality Certificate. The DEC said both parties had agreed to extend the deadline.
Last year, the Federal Energy Regulatory Commission (FERC), which controls interstate transmission of natural gas, agreed with a National Fuel Gas request to approve the project with conditions.
One of the conditions is that National Fuel Gas obtain a Water Quality Certificate from DEC. National Fuel Gas sued FERC in Federal Court in the District of Columbia to remove the conditions. The ruling states that “It is indisputable, however, that if the Water Quality Certificate denial is ultimately upheld, the pipeline cannot be built.”
The appellate ruling will apply to others still fighting eminent domain proceedings by National Fuel Gas.
Abraham, of Great Valley, noted another portion of the appellate decision stated: “Only a viable public project can force respondents to surrender their rights in their land.” He said there will be no eminent domain “unless and until National Fuel Gas can prevail against DEC” in the Second Circuit or against the FERC conditions in the D.C. Circuit.
“They don’t have authorization from FERC to begin construction,” Abraham said. He cited one portion of the decision, which said: “given the State’s WQC denial, there simply is no viable public project. Consequently, petitioner [National Fuel] has no right to force respondents [the Schuecklers] to sell something that is not for sale.”
National Fuel Gas spokesman Karen Merkel said Wednesday, “The litigation surrounding the Northern Access Project has been significant over the last two years involving federal, state and local jurisdictions. Interstate pipeline projects are regulated by FERC under the federal Natural Gas Act.”
In an email Merkel said, “The federal approval received from the Federal Energy Regulatory Commission and FERC’s Aug. 6 Order that the NY DEC waived the ability to issue or deny a Clean Water Action Section 401 permit for the Northern Access project remain in force.
“National Fuel remains committed to this project and is pleased that we have secured agreements more than 500 property owners along the 97-mile proposed pipeline route. At this point we are considering our appellate options based on this ruling,” Merkel said.
National Fuel Gas President and CEO Ron Tanski said during a Nov. 2, earnings conference call: “Our Northern Access project received a boost by way of a favorable determination by FERC that the NY DEC exceeded their allowed time to either approve or deny a water quality certification.
“While we are still a couple of years and likely a few legal challenges away from constructing this project, it’s a giant step in the right direction. We anticipate that this will likely be a 2022 project,” Tanski said.
The project would employ about 1,700 workers during construction, generate $11.8 million in annual sales taxes and a one-time $8 million sales tax impact.
The pipeline would move natural gas from the Marcellus shale fields of Pennsylvania into Western New York for residential and commercial supplies as well as the export market.
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