The New York State Court of Appeals reversed a lower-court ruling that found National Fuel Gas did not have a right-of-way across a Cuba woman’s property for the Northern Access Pipeline running from Pennsylvania to Niagara County.

The Appellate Division’s Fourth Department reversed a decision last year by Acting State Supreme Court Judge Thomas P. Brown in Belmont.

The vote of the state’s highest court on Wednesday was 3-2.

Brown ruled that National Fuel Gas had followed the law in trying to negotiate the right-of-way across the property of Joseph and Theresa Schueckler before commencing eminent domain proceedings.

The Appellate Division then disagreed, saying National Fuel Gas Supply Corp. did not have a Water Quality Certificate from the state Department of Conservation (DEC), which was one of the conditions set by the Federal Energy Regulatory Commission (FERC).

The federal agency pointed out that DEC had not complied with a one-year review limit on the pipeline route, and FERC officials considered the issue closed and approved the project — with conditions.

Joseph Schueckler died during the court proceedings in the case.

The proposed pipeline crosses the Allegheny River near Ceres in Allegany County, then crosses into Portville in Cattaraugus County. It travels through Hinsdale, Ischua, Franklinville, Machias and Yorkshire before crossing Cattaraugus Creek into Sardinia in Erie County.

Gary Abraham, the attorney handling the case for Theresa Schueckler, said he had spoken with his client about the decision. She is now considering whether to appeal the decision to the U.S. Supreme Court.

Abraham said under the U.S. Natural Gas Act, the Clean Water Act prevents FERC from issuing a Water Quality Certificate. National Fuel Gas filed the lawsuit before the water quality decision was decided.

“They didn’t have a valid FERC certificate,” he said.

National Fuel Gas is seeking to have the Water Quality Certificate for the 99-mile pipeline project waived. That is currently before the Federal Court’s Second Circuit in New York City, although waiving the WQC, required by the Environmental Protection Agency, is usually heard by the Court of Appeals in Washington, D.C.

“There has been no judicial determination” on the Water Quality Certificate that DEC issues on behalf of the EPA.

The Clean Water Act says FERC cannot grant a permit for the pipeline until after the WQC is obtained or waived, Abraham said. “FERC has not authorized construction” and the Army Corps of Engineers have not issued a wetlands permit.

“Theresa will not be affected until that happens,” Abraham said. “New York stopped the pipeline.”

Karen Merkel of National Fuel Gas Corporation’s corporate communications, said, “The ruling by the New York Court of Appeals is a good outcome for the Northern Access Project, and is consistent with longstanding principles concerning the use of eminent domain for federally-regulated gas pipeline projects. Cases such as this are complicated and it is important to know that the land owner retains ownership of their property and can continue to farm or use the land for recreational purposes.”

She said, “The only requirement of the landowner is that they not build a structure on the right-of-way. As important, we are very committed to maintaining the land and restoring it back to as good or better condition.”

Merkel said interstate pipeline projects are regulated by FERC under the federal Natural Gas Act. Federal approval for the project and FERC’s Order that the New York State Department of Environmental Conservation 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 the Northern Access Project that will provide access to a low-cost source of energy for residential and commercial customers throughout the North American pipeline grid," she said.

(Contact reporter Rick Miller at rmiller@oleantimesherald.com. Follow him on Twitter, @RMillerOTH)

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