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Jul 16, 2020

National Fuel wins right to take land for pipeline

The state Court of Appeals has ruled that National Fuel has the power to take land for a planned natural gas pipeline despite the state’s refusal to approve the project.

The attorney for an affected landowner who has fought the utility in court said Tuesday that he hopes to appeal the case to the U.S. Supreme Court.

The state’s highest court ruled 4-2 on June 25 in favor of the utility, which had won approval from the Federal Energy Regulatory Commission for the Northern Access pipeline. It would carry natural gas from northern Pennsylvania through Allegany, Cattaraugus and Erie counties and link with an existing Canadian pipeline beneath the Niagara River.

National Fuel was challenged by Theresa Schueckler, whose late husband, Joseph, refused to sell National Fuel a 50-foot-wide strip of his 200 acres in Clarksville, Allegany County.

National Fuel took the Schuecklers to court in 2017, and a State Supreme Court justice in Allegany County granted National Fuel the power to seize the land under the state’s eminent domain law.

The Schuecklers appealed and in November 2018 won by a 3-2 vote in the Appellate Division of State Supreme Court. But the utility took the case to the Court of Appeals, which decided that the original judge in Allegany County got it right.

“The ruling by the New York Court of Appeals is a good outcome for the Northern Access Project, and is consistent with long-standing principles concerning the use of eminent domain for federally-regulated gas pipeline projects,” National Fuel spokeswoman Karen Merkel said.

The company has not said when it would start construction. There is further litigation, including an effort by the state Department of Environmental Conservation to get a federal court in New York City to block the project.

The DEC refused to give National Fuel a water quality permit allowing the pipeline to cross streams along its route. But the Court of Appeals said that’s irrelevant because FERC’s ruling trumps anything the DEC might do, and FERC didn’t make state action a condition for its approval of the project.

“A FERC order is final and effective as a matter of federal law until it is stayed by FERC, itself, or an appropriate reviewing federal court,” the Court of Appeals said.

Gary A. Abraham, Schueckler’s attorney, said two federal laws seem to conflict, and the two Court of Appeals judges who dissented from the ruling recognized that.

“I still think that the Clean Water Act preempts the Natural Gas Act, which gives FERC its authority,” Abraham said.

“The Clean Water Act provision we were relying on says no federal license may issue until the water quality certification required under the Clean Water Act is issued. And the court disregarded that. The dissent did not.”

“As is evident from the express language of the Clean Water Act, Congress granted to the states project-ending authority,” dissenting Justice Jenny Rivera wrote.

FERC’s approval also exempted National Fuel from the provisions of state law that require public notice and a public hearing before any eminent domain efforts go forward, the court majority said.

Pennsylvania authorities have granted National Fuel all the permits the company needs to build the pipeline in that state.

Published by The Buffalo News

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