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Magistrate recommends rejecting pipeline injunction

  • NEXUS-web-jpg-1

    The proposed route for the NEXUS pipeline.

    ED BETZEL / GAZETTE GRAPHIC

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A magistrate is recommending a federal judge deny a request from more than 60 landowners in Medina, Summit and Stark counties to stop the NEXUS natural gas pipeline.

The attorney for the landowners, David Mucklow, of Green, said Wednesday he has 14 days to object to the magistrate’s recommendation and plans to do so.

U.S. Magistrate Judge Kathleen B. Burke’s 18-page report goes to Judge John R. Adams, of the U.S. District Court’s Northern District of Ohio, for a final order. In it, Burke recommends denying a preliminary injunction based on the court’s jurisdiction.

“We’ll file our objections and then proceed,” Mucklow said. “Judge Adams is entitled to his own opinion. We want to convince him that the magistrate missed several points.

The landowner’s lawsuit filed in May seeks to end a $2 billion proposed NEXUS Gas Transmission project that would transport natural gas from Columbiana County to Canada for export sales.

“The case is not even close to being over,” Mucklow said. “There are five more phases. This was a first attempt to get a ‘stay’ in place against FERC (the Federal Energy Regulatory Commission). It was a preliminary attempt to stop a certification order.”

The Washington, D.C.-based FERC, which oversees pipeline projects, had been unable to make rulings this year until the recent U.S. Senate confirmation of two new commissioners.

The departure of two commissioners earlier this year left the five-member board with only one seated member.

A message left with the FERC media relations department Wednesday was not returned.

NEXUS spokesman Adam Parker said in an email the company was “pleased” with Magistrate Burke’s recommendation.

“The record supporting NEXUS’ Final Environmental Impact Statement (FEIS) and Application is complete and ready for prompt FERC approval now that a quorum has been restored,” Parker wrote.

FERC and NEXUS, named as defendants in the lawsuit, have argued that the only federal court with jurisdiction over cases such as this should be the Court of Appeals in Washington, D.C. Arguments have been presented that the legal process falls under the Natural Gas Act, passed in 1938 as the first piece of federal legislation that regulated natural gas.

York Township resident Paul Gierosky, one of the landowners in the suit and a leader of the Coalition to Reroute NEXUS, said Wednesday he was frustrated by Burke’s recommendation.

On Nov. 30, FERC staff submitted the FEIS document for certification by the Federal Energy Regulatory Commission, but no action has been taken.

Mucklow said the suit in the Northern Ohio District Court was an attempt to fight against “crooked government.”

But Mucklow added that, if necessary, the Northeast Ohio landowners can appeal to the 6th Circuit Court of Appeals in Cincinnati.

“We’ve got this mapped out. In any game plan. You’ve got to think several steps ahead.

“We are on firm ground,” Mucklow added. “Sometimes it’s hard to convince a court when they’re looking for ways to avoid doing work.

“The big issue is this is a foreign company coming to the U.S. and using eminent domain for a purely private purpose. They don’t deny that the gas going through the pipeline is going to Canada and will be sold on the open market. Where does it say that’s a proper use of the Fifth Amendment (to the U.S. Constitution)?” Mucklow asked.

NEXUS is a business partnership of Spectra Energy, based in Houston, and DTE Energy, based in Detroit. The company is owned by Calgary, Alberta-based Enbridge Inc. of Canada. The pipeline first was proposed in August 2014.

Parker noted that NEXUS is “a 50/50 joint venture” between DTE and Spectra.

In his email, he wrote: “Generally speaking … NEXUS continues to work with landowners to address questions and arrive at mutually satisfactory easement agreements. Our commitment to working with landowners is evidenced by the fact that we have reached easement agreements on more than 93 percent of the project right-of-way properties to date. We will continue to work with individual landowners to resolve any outstanding easement matters.”

Mucklow said there are questions about whether the 93 percent figure refers to the number of landowners affected by the pipeline or if the figure is a percentage of the area covered along the line.

The attorney suggested there are general concerns about the economic market for the gas but Parker said the company has commitments from Eastern Canadian and Midwest distribution companies. “Our shippers remain committed to the NEXUS project,” Parker’s statement said.

He added that, “NEXUS shippers and potential shippers have made clear that they project future growth in gas demand.”

Contact Managing Editor Lawrence Pantages at (330) 721-4065 or lpantages@medina-gazette.com.



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