Nat'l Fuel Gas Supply Corp. v. Town of Wales, 12–CV–034S.

904 F.Supp.2d 324

NATIONAL FUEL GAS SUPPLY CORPORATION, Plaintiff,

v.TOWN OF WALES and the Town Board of the Town of Wales, Defendants.

No. 12–CV–034S.

United States District Court, W.D. New York.

Oct. 23, 2012.

Richard T. Tucker, Phillips Lytle, LLP, Rochester, NY, John G. Schmidt, Jr., Phillips Lytle, LLP, Buffalo, NY, for Plaintiff.

Jeremy A. Colby, Webster Szanyi, LLP, Buffalo, NY, for Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief Judge.

I. INTRODUCTION

Plaintiff, National Fuel Gas Supply Corporation, brings this action against Defendant,the Town of Wales, alleging that the Town and its board interfered with National Fuel's federal rights regarding construction of a natural gas compressor station in the Town.

National Fuel seeks a declaratory judgment and injunctive relief; it also asserts that the Town's actions constitute a regulatory taking and a deprivation of National Fuel's due process rights. The Town presently moves to dismiss all claims against the Town Board and the two constitutional claims as against the Town. (Docket No. 10.) For the following reasons, the Town's motion is granted in full.

II. BACKGROUND

A. Facts¹

In furtherance of its “Northern Access Project,” National Fuel planned to build a compressor station in the Town of Wales, New York.² (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.) Under the Natural Gas Act, such a certificate is a prerequisite to construction. See15 U.S.C. § 717f(c)(1)(A). The compressor station, which ensures that gas remains pressurized as it travels through interstate pipelines, was to be constructed adjacent to an existing meter station.³ (Am Compl., ¶ 10; Docket No. 6.)

Around July of 2011, however, the Town informed National Fuel that it would require a Special Use Permit (“Permit”) before it would allow National Fuel to begin construction. ( Id., ¶ 11.) According to National Fuel, “immediately thereafter, as a matter of cooperation, and in attempt to accommodate the local zoning process,” it began the Permit application process. ( Id., ¶ 12.)

As part of that process, National Fuel submitted an Environmental Assessment Form, released an Environmental Assessment for public review, conducted a noise survey, and discussed the compressor station at various town board meetings. In the meantime, on October 20, 2011, the FERC issued the Certificate. ( Id., ¶ 30.) 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,⁴ 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., ¶ 31.)

The FERC Certificate also instructs:

National Fuel shall make all reasonable efforts to ensure its predicted noise levels form 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 after placing the East Aurora Compressor Station in service.

( Id.)

Finally, it provides:

Any state or local permits issued with respect to the jurisdictional facilities authorized herein must be consistent with the conditions of this certificate. The Commission encourages cooperation between interstate pipelines and local authorities. However, this does not mean that state and local agencies may prohibit or unreasonably delay the construction or operation of facilities approved by this Commission.

( Id., ¶ 32.)

After issuance of the Certificate, National Fuel continued to work with the Town regarding the Permit: its representatives attended meetings, provided a tour of the site, and allowed an inspection of a similar compression station in Pennsylvania. ( Id., ¶¶ 36–42.) At this inspection, on December 8, 2011, the Town representatives agreed that the noise from the station was not excessive. ( Id., ¶ 43.)

Eventually the Town issued a preliminary Permit, but it was inconsistent with the Certificate. ( Id., ¶ 45.) For example, Special Condition No. 3 of the proposed Permit required that the “noise related to the compressor unit venting shall be at a maximum of 45 dBA at the nearest NSA to the compressor station.” ( Id., ¶ 46.) This imposed a stricter requirement than Certificate's 55 dBA level. ( Id.) Further, Special Condition No. 4 of the proposed Permit stated that “predicted noise levels from the compressor station shall not be exceeded at nearby NSAs.” According to National Fuel, this is significantly more stringent than the Certificate's requirement that National Fuel “shall make all reasonable efforts” to ensure that the predicted noise levels are not exceeded at the nearby NSAs. ( Id., ¶ 47.)

Negotiations continued, and on December 9, 2011, National Fuel proposed several changes to the Permit. ( Id., ¶ 48.) Three days later the Town advised National Fuel that it was unwilling to (1) eliminate the Special Condition No. 3 requirement that the total sound level at the nearest NSA be no more than 45 dBA, or (2) revise Special Condition No. 4 to state that “all reasonable efforts” would be used to achieve the predicted noise levels from the Compressor Station. ( Id., ¶ 49.)

On December 22, 2011, the Town issued the final Permit; it retained the objected-to requirements and also mandated that “[n]oise related to the compressor operation shall not exceed 3 dBA over background ambient noise.” ( Id., ¶ 51.)

The Town further required that National Fuel execute an “acknowledgment” regarding a waiver of National Fuel's right to challenge the conditions contained in the Permit. ( Id., ¶ 53.) After negotiating, the Town Board approved a revised acknowledgment, without the waiver, and signed the Permit on January 10, 2012.⁵ ( Id., ¶ 55.)

In the months following, the FERC granted National Fuel permission to begin construction of the compressor station, and the Town issued a building permit, which incorporated the Special Use Permit. ( Id., ¶¶ 58–60.)

On April 23, 2012, National Fuel commenced construction on the compressor station.⁶ ( Id., ¶ 62.)

B. Procedural History

National Fuel filed a complaint in this Court in January 12, 2012. (Docket No. 1.) Several months later, on May 3, 2012, it amended its complaint. (Docket No. 6.) On May 24, 2012, the Town moved to dismiss the amended complaint. (Docket No. 10.) Briefing on that motion concluded on June 21, 2012, at which time this Court took the motion under advisement.

III. DISCUSSION

A. Motion to Dismiss Standard—Rule 12(b)(6)

Rule 12(b)(6) allows dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Federal pleading standards are generally not stringent: Rule 8 requires only a short and plain statement of a claim. Fed.R.Civ.P. 8(a)(2). But the plain statement must “possess enough heft to show that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007).

When determining whether a complaint states a claim, the court must construe it liberally, accept all factual allegations as true, and draw all reasonable inferences in the plaintiff's favor. ATSI Commc'ns, 493 F.3d at 98. Legal conclusions, however, are not afforded the same presumption of truthfulness. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Labels, conclusions, or a “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Facial plausibility exists when the facts alleged allow for a reasonable inference that the defendant is liable for the misconduct charged. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The plausibility standard is not, however, a probability requirement: the pleading must show, not merely allege, that the pleader is entitled to relief. Id. at 678, 129 S.Ct. 1937;Fed.R.Civ.P. 8(a)(2). Well-pleaded allegations must nudge the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

Courts therefore use a two-pronged approach to examine the sufficiency of a complaint, which includes “any documents that are either incorporated into the complaint by reference or attached to the complaint as exhibits.” Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir.2004). This examination is context specific and requires that the court draw on its judicial experience and common sense. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. First, statements that are not entitled to the presumption of truth—such as conclusory allegations, labels, and legal conclusions—are identified and stripped away. See Id. Second, well-pleaded, non-conclusory factual allegations are presumed true and examined to determine whether they “plausibly give rise to an entitlement to relief.” Id.

B. The Town's Motion to Dismiss

The Town does not move to dismiss National Fuel's amended complaint as it pertains to the declaratory judgment and injunctive relief actions as against the Town itself. It does argue, however, that National Fuel's due process and takings claims are subject to dismissal, and that the Town Board should be dismissed from the case. Each of these contentions will be discussed in turn.

1. The Town Board

The Town contends that claims against the Town Board are duplicitive of those against the Town itself.

Typically, “in New York, a suit against a municipal legislative...