Eminent Domain Used by Pipeline-Builder and a Judge Doesn’t Like It

A proposed pipeline is getting the okay to exercise eminent domain power on certain areas of the state.  The green light was given by New York’s highest court this week which said that federal approval was good enough.
 
On June 25, 2020 the Court of Appeals filed its order in favor of National Fuel Gas Supply Corp., the pipeline-builder.  The company expects to construct a 99-mile natural gas pipeline in Pennsylvania and western New York.
 
As often happens with eminent domain, the people who own the land fight back.  National Fuel wanted to build a 50-foot wide permanent easement and the couple that owned the property resisted.  When the negotiations failed, National Fuel decided to exercise the eminent domain authority given to it by a Federal Energy Regulatory Commission certificate of public convenience and necessity.
 
Part of the argument from the couple stated that National Fuel’s certificate was invalidated by failure to obtain 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 and said that 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…”
 
As shown by these dissenting opinions, the controversy surrounding eminent domain remains strong.  This ruling is reminiscent of Kelo v. City of New London, where the Court held that the problems of large-scale urban blight need to be addressed with large-scale redevelopment plans, and that land can be appropriated then transferred to a private entity for a clearly defined public use. 
 
New York is a very condemnor friendly state.  It is always important to contact an experienced eminent domain attorney if you are faced with the seizure of your property.