National Fuel Gas Co.'s failure to win a change of venue to reconsider New York state's permit denial for its Northern Access gas pipeline will not delay the planned startup of the project, a company spokeswoman said.
National Fuel spokeswoman Karen Merkel dismissed the adverse Oct. 8 ruling against the 490 MMcf/d project as "another procedural step in the litigation process." National Fuel is "confident that the court will arrive at the correct decision on the underlying appeal," she said in an Oct. 10 email.
National Fuel, and its subsidiary Empire Pipeline Inc., "remains committed to Northern Access and views it as a longer-term project likely in the 2022, 2023 time frame," Merkel said.
A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit in New York denied a motion sought by National Fuel and Empire Pipeline to transfer the case to the U.S. Court of Appeals for the D.C. Circuit.
The companies had argued that the case should be heard in the D.C. Circuit because the issues it raised were similar to those in an unrelated case pending before that court.
The appeal stems from the certificate of public convenience and necessity, which National Fuel and Empire Pipeline received from the Federal Energy Regulatory Commission in February 2017 permitting the construction of the Northern Access 2016 project, a 99-mile pipeline that traverses through upstate New York and northwestern Pennsylvania.
In April 2017, the New York State Department of Environmental Conservation denied a water quality permit for Northern Access. The approximately $450 million project would add firm gas transportation capacity to the National Fuel and Empire Pipeline systems for delivery to markets in New York, New England, the Midwest and Canada.
FERC issued a waiver in August 2018 that allowed National Fuel and Empire to bypass New York's water quality certification, saying the state waived its authority because it had missed a deadline under the federal Clean Water Act for acting on the permit application. The state and the Sierra Club appealed that waiver decision in the 2nd Circuit Court.
In seeking the change of venue, attorneys for the pipeline companies had argued that the issues raised in the case mirrored those in another case before the D.C. Circuit. (Allegheny Defense Project v. FERC)
"Transfer to the D.C. Circuit would conserve judicial resources, honor Congress' policy determinations and avoid the risk of conflicting judicial rulings," according to the change of venue motion.
An attorney representing the Sierra Club said the three-judge panel made the correct decision in regard to the change of venue motion. "We're very pleased that the 2nd Circuit agreed that we filed this case in the right court and we're looking forward to briefing the case," Moneen Nasmith said in an interview Oct. 10.
Jim Magill is a reporter with S&P Global Platts. S&P Global Market Intelligence and S&P Global Platts are owned by S&P Global Inc.
