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National Fuel Gas Supply Corporation v. Town of Wales

United States District Court, Second Circuit

October 22, 2013

NATIONAL FUEL GAS SUPPLY CORPORATION, Plaintiff,
v.
TOWN OF WALES, Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief District Judge.

I. INTRODUCTION

Plaintiff, National Fuel Gas Supply Corporation, brings this action against Defendant, the Town of Wales, arguing that a permit issued by the Town that attempts to regulate a natural gas compressor station is preempted by federal law.

This Court has already resolved a motion to dismiss filed by the Town of Wales. In that Decision and Order, this Court dismissed (1) the Town Board as a party, (2) National Fuel's due process claim, and (3) National Fuel's regulatory taking claim.

But the crux of this action - National Fuel's request for injunctive and declaratory relief on preemption grounds - was not addressed by the Town's motion to dismiss. Now, National Fuel moves for summary judgment seeking that relief. The Town opposes the motion.

For the following reasons, National Fuel's motion is granted in part and denied in part.

II. BACKGROUND

A. Facts

The facts, as alleged in the National Fuel's amended complaint, were spelled out in this Court's previous Decision and Order. Although the case is now before this Court on a motion for summary judgment, the facts have not materially changed, and, for the most part, will be reproduced here.

In furtherance of its "Northern Access Project, " National Fuel planned to build a compressor station in the Town of Wales, New York. (Am. Compl. ¶ 7; Docket No. 6.) To that end, in March of 2011, National Fuel filed an application with the Federal Energy and Regulatory Commission ("FERC") for a Certificate of Public Convenience ("Certificate"). (Id.; Pl.'s Stmnt. ¶ 1; Docket No. 16-2.[1]) Under the Natural Gas Act, such a certificate is a prerequisite to construction. See 15 U.S.C. § 717f(c)(1)(A). The Compressor Station will pump natural gas from National Fuel's pipeline into a higher pressure pipeline operated by Tennessee Gas Pipeline. (Id. at 4.)

According to National Fuel, "as a matter of cooperation [with the Town], and in attempt to accommodate the local zoning process, " it began the application process for a Special Use Permit required by the Town. (Am Compl., ¶ 12.) To that end, on July 18, 2011, National Fuel submitted to the Town a Special Use Permit application and an Environmental Assessment Form regarding the Compressor Station. (Pl.'s Stmnt., ¶ 5.)

In the meantime, on October 20, 2011, FERC issued the Certificate. (Id., ¶ 20.) It included the following noise limitation:

If the noise attributable to the operation of the East Aurora Compressor Station at full load exceeds an Ldn of 55 dBA at any nearby NSAs, [2] National Fuel shall file a report on what changes are needed and shall install additional noise controls to meet the level within one year of the in-service date.

(Id., ¶ 21; FERC Ceritifciate, attached as Ex. G of Kasprzak Aff; Docket No. 16-10.)

The FERC Certificate also instructs:

National Fuel shall make all reasonable efforts to ensure its predicted noise levels from the East Aurora Compressor Station are not exceeded at nearby NSAs and file a noise survey showing this with the Secretary no later than 60 days ...

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