Landowners, DEC, Sierra Club fight back in National Fuel pipeline case - Buffalo News

As National Fuel and the state Department of Environmental Conservation continue their legal battles over a pipeline that would carry natural gas from Pennsylvania through Western New York, residents in the affected areas still are playing a role in opposing the project.

"We've still got this hanging over us. It's been five years," said Paula Hargreaves of Pendleton, as the battle continued with more court filings last week.

She is one of seven affected property owners who joined the DEC and the Sierra Club in arguing that National Fuel shouldn't be allowed to accelerate the approval process for the $500 million Northern Access pipeline.

The company said in federal filings last month that it hopes to accomplish that by skipping litigation over the state's rejection of a permit for the pipeline to cross 192 streams in Western New York.

The 96.5-mile pipeline would carry fracked natural gas from Pennsylvania through Allegany, Cattaraugus and Erie counties.

In Niagara County, National Fuel's Empire Pipeline subsidiary plans a 2-mile pipeline extension and construction of a compressor on Killian Road in Pendleton and a gas dehydration station on Liberty Drive in Wheatfield.

The latter facility is needed to take enough water out of the gas to comply with Canadian regulations, since the gas is to be pumped into a Canadian pipeline under the Niagara River.

The package of work also includes construction of an interconnection between National Fuel's pipeline and the Tennessee Natural Gas pipeline in Wales.

On Feb. 5, the U.S. Second Circuit Court of Appeals invalidated the DEC's 2017 rejection of the water quality permit, saying the DEC didn't adequately explain its decision. But the court allowed the DEC to try again.

The DEC rejected the water quality permit again last month, but National Fuel contended that by missing a deadline to issue the 2017 rejection, the DEC in effect waived all future control of the project.

National Fuel asks feds to again squelch DEC rejection of Northern Access pipeline

In briefs sent to FERC last week, the DEC and the private-sector pipeline foes contended that by giving the DEC a chance for a do-over, the Second Circuit in effect ruled that there was no waiver of the department's authority over the stream crossings.

"New York State, to be honest, has been marvelous," Hargreaves said. "The New York State DEC hasn't given up on us."

However, FERC has twice ruled in National Fuel's favor on the stream crossing issue.

The late Joseph Schueckler of Cuba, seen in 2018 on land National Fuel wants to seize for its Northern Access pipeline. (News file photo)

Ann Marie Paglione of Pendleton said eight families living within a mile of the compressor site underwent baseline health testing four or five years ago for comparison with future tests that would be administered if the project is ever built.

Another legal issue entangling the pipeline project is National Fuel's desire to use eminent domain to seize pieces of private land along the planned route.

The eminent domain case is before the state Court of Appeals, which is expected to hear arguments in November, according to W. Ross Scott, an Allegany County attorney representing the affected landowners.

The issue is whether National Fuel is allowed to skip the normal eminent domain procedure in state law because FERC granted a certificate of "public convenience and necessity" to build the pipeline, even though the DEC has refused the water quality permit.

The case is named after Joseph Schueckler, an Allegany County resident who filed suit before he died a few months ago, Scott said. Schueckler's widow, Theresa, is carrying on the lawsuit.

National Fuel won in State Supreme Court, but the Schuecklers won in the Appellate Division. The decision there last year said, "Can a corporation involuntarily expropriate privately-owned land when the underlying public project cannot be lawfully constructed? We answer that question firmly in the negative."

Scott contended that if National Fuel wins the case, it will be allowed to take his clients' land whether or not the pipeline is ever built.

"That will be a major issue, because it's never been decided in any state whether (a company) is entitled to eminent domain whether they build a project or not," Scott said.

"National Fuel (is) moving forward with securing land rights in the event the project does move forward and we can proceed without additional delays," company spokeswoman Karen L. Merkel said.