Court Nixes 'Eminent Domain' for Big East Coast Fracked-Gas Pipeline
Federal appellate judges' reversal of decisions by a lower court and by the Federal Energy Regulatory Agency to allow private developers of the $1-billion, 120-mile PennEast natural gas pipeline to condemn state-owned land in New Jersey appears headed for US Supreme Court review.
The Sept. 10 ruling by the three-judge panel of the Third Circuit Court of Appeals in Philadelphia said the previous approvals of eminent domain to seize131 land parcels, including 40 that are state-owned, for the 36-in.-dia line violate the US Constitution's 11th Amendment.
PennEast had argued it was allowed under the federal Natural Gas Act to condemn properties along the line route and said that a ruling like the one it ultimately received could cause that project and other interstate pipelines to halt.
Pat Kornick, a spokeswoman for PennEast Pipeline Co., said the firm is still reviewing the appellate decision and did not confirm a high-court appeal in a statement. But she said PennEast "remains committed to moving forward" with the project.
The company had stated its intention to limit impacts to waterways by drilling beneath streams where possible, and restoring streambeds after construction is completed.
But New Jersey Attorney General Gurbir Grewal said the state-owned properties are open space preserved for recreation, conservation and agriculture and not suited for natural gas shipment. He said the 11th Amendment grants states immunity from eminent domain takings by private entities.
Environmentali group Delaware Riverkeeper, the project's leading opponent, said the ruling could have wider implications.
“This is a huge blow against the PennEast pipeline project and a huge victory for states and states rights,” said the group's director Maya Van Rossum.
The appellate court said the pipeline still could proceed with a "workaround," and remanded the case back to the lower court.
Online publication NJ Spotlight said it was not clear if or how the project would proceed in rerouting the line.
The court also said that while it was "odd" for the federal government to lack the power to condemn state property to build and operate interstate gas pipelines under the Natural Gas Act, it said that an alternative seizure approach for federal agencies "is an issue for Congress."
Meanwhile, in another eminent-domain ruling earlier this month in a pipeline project, the Washington, D.C. appellate court ordered FERC to explain why it granted seizure authority to an Ohio line that would export natural gas to Canada, noting that arguments of project opponents "raise legitimate questions, which the Commission has heretofore failed to adequately answer.”