On Feb. 3, the U.S. Supreme Court agreed to hear an appeal filed by PennEast Pipeline seeking to reverse the decision of the Court of Appeals for the Third Circuit, which held that PennEast Pipeline, a private company, cannot sue the state of New Jersey in federal court in order to acquire property rights by eminent domain.
If the state of New Jersey prevails, the 116-mile PennEast Pipeline project may never be built.
This is a significant case for the residents of New Jersey and people concerned with the continued expansion of fossil fuel infrastructure.
Consider the following crucial issues related to the case:
- The state of New Jersey has spent substantial amounts of money acquiring easements from private property owners to preserve land for recreational, conservation and agricultural uses;
- As residents of the state of New Jersey, we all benefit from these easements by protecting natural resources, promoting agricultural uses and limiting overdevelopment;
- The attorney general of the state of New Jersey understands the value of the easements and has joined many private property owners challenging PennEast’s efforts to use the power of eminent domain to force property owners to allow a 30-inch pipeline (yes, a very big pipe) to be installed on these preserved properties;
- Although most of the pipeline will be underground, the construction process can cause substantial damage to the property;
- Often times, trees need to be removed in order to excavate the large trenches necessary to install the pipe. In addition, the pipelines require above-ground facilities, including PIG launchers, to clean and inspect the pipeline.
The State of New Jersey successfully obtained a decision from the Court of Appeals requiring PennEast to dismiss the case against the state of New Jersey. A win by Gurbir Grewal, the attorney general of the state of New Jersey, is a win for all of the residents in the state, since it will result in the continued preservation of our natural resources.
Residents in other states should also be rooting for the state of New Jersey.
PennEast has made the argument that the recent decision under appeal, which prohibits a private pipeline company from suing a state in federal court to acquire property rights to build a pipeline, is a game-changer and gives states veto power over future pipeline projects. Although this claim is suspect on its face, pipeline companies cannot make their own rules just because they have successfully used the same “playbook” for 80 years without an adverse court decision.
This argument leads one to question whether the pipeline projects built over the past 80 years were actually necessary and approved by the various states at a time when natural gas was a good alternative to other fuels. Times change, as do policies, and pipelines cannot be allowed to ignore the sovereign rights of the states, a protection many states negotiated when they joined the union.
Timothy P. Duggan, shareholder with the law firm of Stark & Stark in Lawrenceville, is chair of the firm’s Eminent Domain Group and counsels more than 40 private property owners, municipalities and nonprofit organizations contesting PennEast’s effort to use the power of eminent domain to build its pipeline.