Dec. 13–It’s the same pipeline proposed by the same gas company trying to obtain property rights on land it doesn’t own.
But different judges have rendered different opinions on whether National Fuel Gas can use a state eminent domain law to take the property against landowners’ wishes, with compensation, for a project the state has not approved.
The latest decision came last week from state Supreme Court Judge John F. O’Donnell in Erie County.
O’Donnell ruled National Fuel Gas has the right to obtain an easement on Lia Oprea’s 183 acres in Sardinia for a 97-mile Northern Access pipeline between Pennsylvania shale country and Niagara County. The property has been in Oprea’s family for more than a century.
But O’Donnell’s order came less than a month after a higher court, the state Appellate Division, ruled 3-2 in favor of an Allegany County couple who sued to prevent the company from using eminent domain for the pipeline on their land.
So, what gives?
National Fuel calls it just part of an ongoing legal process that’s likely delayed construction of the pipeline to 2022.
“While we are still a couple of years and likely a few legal challenges away from constructing this project, it’s yet another step in the right direction,” National Fuel said Wednesday in a statement to The Buffalo News.
For Oprea, the ruling comes as a blow just weeks after she felt a boost in morale from Joseph and Theresa Schueckler’s win over National Fuel at the appellate court.
“It wasn’t the greatest Christmas gift,” Oprea said of O’Donnell’s order.
The appellate division is a higher court than O’Donnell’s bench, so shouldn’t the appellate ruling prevail?
“You would think so, wouldn’t you?” said Richard Lippes, Oprea’s attorney.
The appellate judges’ rationale will likely form the basis for an appeal, if Oprea decides to pursue one, Lippes said. She has 30 days to do so.
Oprea said she needs to consult with family and organize a fundraising drive to defray legal costs, which could total tens of thousands of dollars.
“As far as I’m concerned, I’m going to raise the money and we are appealing,” Oprea told The Buffalo News on Wednesday.
She remained optimistic of victory in the next round of court battles — at the appellate division where the Schuecklers won.
“The judges there seem to really listen and take everything into consideration,” Oprea said. “It’s exhausting, but that’s kind of what National Fuel counts on.”
National Fuel says it has obtained agreements with more than 500 landowners for rights of way for its planned pipeline.
Fewer than five cases remain unsettled, including the Schueckler and Oprea properties.
The pivotal legal question turns on whether National Fuel has a viable pipeline project.
The lower state courts in Allegany and Erie counties found it to be a viable project, given the Federal Energy Regulatory Commission’s approval of National Fuel’s plans. The federal agency determined that the state Department of Environmental Conservation failed to issue timely denial of a water quality certificate that the project needs. So the lower court judges ruled the company can exercise eminent domain rights for the pipeline.
The 3-2 majority in the Schueckler case, however, cited the DEC’s denial of the permit, finding the gas company had no project and therefore no right to eminent domain.
National Fuel is appealing the appellate decision. Also, the DEC is appealing FERC’s ruling.
Environmental advocates regard Oprea’s property — at Cattaraugus Creek — to be among the most sensitive along the proposed pipeline route because the Cattaraugus Creek’s watershed is designated as single-source drinking water aquifer for a 325-square-mile area across southern Erie County and the Southern Tier.
It’s why Oprea has garnered support from the nation and environmental groups like Sierra Club in her fight against National Fuel.
Gas company officials said those concerns are overstated because the pipeline’s shallow 3 feet by 6 feet depth wouldn’t be in zones where water supply wells would tap into the watershed’s aquifer.
“The proposed project is no different than the hundreds of other infrastructure projects — bridges, sewer and water lines, and electric lines — and non-infrastructure projects — homes and commercial buildings — that have been safely constructed within the bounds of the aquifer over the past several decades,” National Fuel said in a statement.
Oprea and others plan a public rally Saturday morning at Bidwell Parkway and Elmwood Avenue.
“Every time something like this happens, our group seems to get larger,” Oprea said.
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