ALBANY, N.Y. (Legal Newsline) – New York’s highest court says federal approval is good enough to allow a proposed pipeline to exercise eminent domain power on certain areas in the state.
The Court of Appeals filed its order June 25 in favor of National Fuel Gas Supply Corp., which is hoping to construct a 99-mile natural gas pipeline in Pennsylvania and western New York.
The project met resistance from a couple who owned the property on which National Fuel wanted to build a 50-foot wide permanent easement. Negotiations failed, and National Fuel decided to exercise the eminent domain authority given to it by a federal Federal Energy Regulatory Commission certificate of public convenience and necessity.
The couple challenged, arguing National Fuel’s certificate was invalidated by failure to attain water quality certification from the New York Department of Environmental Conservation.
“(W)hile DEC retained authority to grant or deny National Fuel’s application for a water quality certification (unless deemed waived), such authority did not extend either to invalidating a previously issued FERC certificate… where FERC placed no such conditions on the certificate’s effectiveness or to blocking eminent domain that might otherwise properly proceed under the certificate and (New York’s Eminent Domain Procedure Law),” Judge Leslie Stein wrote.
“It remains within FERC’s purview to determine the effect of the DEC’s denial of National Fuel’s certificate of public convenience and necessity, and to stay or revoke the certificate if it deems it appropriate to do so.”
Judge Jenny Rivera disagreed in a dissenting opinion. She says the FERC certificate conditioned the project on completion of state mandatory assessments.
“(N)o good can come from this,” Rivera said. “Indeed, the majority misinterprets the federal regulatory process and the EDPL condemnation framework, and in doing so sanctions the condemnation of private property for development projects that may never gain financial approval.
“I do not see how the public benefits from the premature taking of private land…”