Skip to Main Content
Services Talent Knowledge
Site Search
Menu

Alert

Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

June 29, 2020

NYS Court of Appeals Holds FERC Certificate of Public Convenience Exempts Pipeline Company From Eminent Domain Public Notice, Hearing Requirements Despite Water-Quality Certification Denial

In a 4-2 decision issued on June 25, the NYS Court of Appeals ruled the certificate of public convenience and necessity that National Fuel Gas Supply Corporation obtained from the Federal Energy Regulatory Commission (FERC) to construct its Northern Access 99-mile natural gas pipeline from Pennsylvania to Western New York (Certificate) exempted it from the public notice and hearing provisions of the Eminent Domain Procedure Law under EDPL 206(A) despite the denial of a water-quality certification which was a condition of the Certificate. The case is National Fuel Gas Supply Corporation v. Schueckler.

The landowner had successfully argued before the Appellate Division that the Certificate was ineffective because it was conditioned upon National Fuel complying with various environmental conditions which it failed to do. Specifically, National Fuel had applied for a water-quality certification from the NYS Department of Environmental Conservation (DEC) that the DEC denied.

In reversing the lower court’s decision, the Court of Appeals held the Certificate didn’t condition National Fuel’s eminent domain power on receipt of the water-quality certification. While satisfaction of FERC’s conditions under the Certificate was required to construct and operate the proposed pipeline, the court held the DEC’s denial of the water-quality certification didn’t invalidate the Certificate and the applicability of the EDPL 206(A) exemption.

The court determined National Fuel satisfied the clear statutory language of EDPL 206(A) by going through the federal regulatory process; submitting materials regarding the public benefit, use, and need for the proposed pipeline; and obtaining the Certificate from FERC that considered all of the relevant factors required by the EDPL in terms of the project’s public benefits and environmental impacts. The court noted the DEC’s denial of the water-certification application is still being litigated, but it didn’t need to consider this based on its decision that the denial didn’t invalidate the Certificate.

In short, the Court of Appeals agreed with National Fuel’s argument that the conditions under the Certificate, including with respect to the water-quality certification, didn’t make the Certificate provisional for purposes of eminent domain since they weren’t conditions to the validity of the Certificate itself. The water-quality certification was a condition to commencing construction but not to National Fuel’s right to proceed under eminent domain.

The dissent highlighted the importance of the water-quality certification requirement in light of the pipeline crossing 192 state-regulated streams and that a taking of private property for a project that may never be built is at odds with the EDPL. In light of the majority’s decision, it invited the legislature to consider whether property owners should be protected from such a result.

If you have any questions regarding the content of this alert, please contact Mark McNamara, Real Property Tax & Condemnation Practice Area chair, at mmcnamara@barclaydamon.com or another member of the firm’s Real Property Tax & Condemnation Practice Area.

Subscribe

Click here to sign up for alerts, blog posts, and firm news.

Featured Media

Alerts

FinCEN Issues Response to Nationwide Injunction on the Corporate Transparency Act

Alerts

Fake Consumer Reviews, Testimonials, and Influence Indicators: Prohibitions and Penalties Under the Federal Trade Commission's Rule

Alerts

Personal Financial Data Rights Rule: Consumer Financial Protection Bureau Compliance

Alerts

Website Accessibility Lawsuits: Several "Tester" Plaintiffs—Paradise Morgan, Timothy Hernandez, Erika Alexandria, Denise Crumwell, and Eugene Duncan—Targeting Businesses in Recent Flurry of Lawsuits

Alerts

Nationwide Injunction on the Corporate Transparency Act

Alerts

Second Circuit Holds That a Default Judgment by an Insurer Against Insured Did Not Preclude Claims by Other Parties

This site uses cookies to give you the best experience possible on our site and in some cases direct advertisements to you based upon your use of our site.

By clicking [I agree], you are agreeing to our use of cookies. For information on what cookies we use and how to manage our use of cookies, please visit our Privacy Statement.

I AgreeOpt-Out