Appeals court allows Northern Access Pipeline to proceed

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The long-delayed Northern Access Pipeline in western New York is once again on track for eventual completion following a federal appeals court ruling that granted its approval to an agreement to extend the deadline for a decision on a water quality permit.

The ruling on the technicality by the U.S. Court of Appeals for the Second Circuit gives new life to the Northern Access, which is designed to ship natural gas around 100 miles from western Pennsylvania to the Buffalo area and beyond. The three-justice panel sided with the Federal Energy Regulatory Commission’s (FERC) conclusion that New York regulators had forfeited their authority to block the permit by agreeing to extend the deadline for a rehearing on FERC’s earlier decision to authorize the construction of the pipeline.

The court’s decision could be appealed to the U.S. Supreme Court. Otherwise, National Fuel Gas Company said it was ready to get the project underway. “The ruling certainly clears the most significant hurdle facing the continued development of the Northern Access project,” the company said in a statement to Pennsylvania Business Report on Thursday. “Project timelines have yet to be determined.”

The Northern Access is designed as a 24-inch pipeline to carry gas from McKean County in Pennsylvania to the company’s existing compressor station in Erie County, NY. The project also includes building a tie-in with the Tennessee Pipe Line in Erie County and construction of a compressor station in Niagara County.

“The company has committed to meet or exceed all safety codes and environmental protective measures in the construction and operation of this project,” National Fuel said. “With these measures in place, the project will not put at risk or endanger any water resources or surrounding environments.”

Meanwhile, the timeline for construction likely will need some rewriting since the court case dates back to March 2016, when National Fuel applied for a water quality certification from the New York Department of Environmental Conservation (DEC). Under Section 401 of the Clean Water Act, the agency had one year to act on the application, but things did not proceed seamlessly.

In August 2016 and again in October, the DEC requested additional information from National Fuel. When it was clear that National Fuel would need additional time to comply within the deadline specified by the Clean Water Act, the DEC and the company struck a deal in January 2017 that resulted in a 36-day extension.

In a nutshell, the DEC eventually denied National Fuel’s original permit application on April 7, 2017, after which National Fuel went to FERC in December 2017 to contend that the DEC had waived its authority to issue the water quality permit by agreeing to the original delay and failing to meet the legal 90-day deadline established by FERC. The ruling stated that National Fuel had “flim-flammed” the DEC by accepting the seemingly friendly delay agreement and then turning around and arguing that the DEC should not have granted it.

The ruling said, “But in the end, Petitioners’ argument fails for the simple reason that FERC could not have been ‘estopped’ (a legal term meaning barred) from reaching the waiver issue because it could have addressed it on its own or at the behest of a third-party.”

Supporters of the pipeline, however, said the decision was an appropriate way to bring the case to a close and end what it saw as bureaucratic delaying of a project that had otherwise complied with all regulations.

“The plain reading of the law says states have a year to make a ‘yes or no’ decision on Clean Water Act Section 401 permits,” said Wendy Hijos, New York Executive Director of the Consumer Energy Alliance. “Instead, the state chose an endless game of keep-away.”