Supreme Court rules against N.J., seemingly clearing way for PennEast Pipeline

By
Tom Bergeron
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The U.S. Supreme Court ruled in favor of the PennEast Pipeline Co. on Tuesday in its dispute with the state of New Jersey, seemingly clearing the way for the building of a 116-mile pipeline that will run from Luzerne County in Pennsylvania to Mercer County.

The dispute involved the ability of the company to use land controlled by the state for the project. In 2018, the Federal Energy Regulatory Commission granted PennEast a certificate of public convenience and necessity to use the land, but the state countered in court.

PennEast, a joint venture of several energy companies, argued the commission’s approval of its project allowed it to use eminent domain to acquire state-controlled properties. The Supreme Court agreed in a 5-4 decision.

The decision essentially means an entity — in this case, the pipeline developer — can invoke the power of the federal government to take state property needed for the project.

Chief Justice John Roberts wrote that, when a certificate of public convenience and necessity is issued, federal law authorizes the certificate’s holder “to condemn all necessary rights-of-way, whether owned by private parties or states.”

Roberts was joined by both conservative justices (Samuel Alito and Brett Kavanaugh) and liberal justices (Stephen Breyer and Sonia Sotomayor).

Anthony Cox, chair of the PennEast board of managers, said the organization was thrilled by the ruling.

“We are pleased that the Supreme Court kept intact more than seven decades of legal precedent for the families and businesses who benefit from more affordable, reliable energy,” he said. “This decision is about more than just the PennEast project; it protects consumers who rely on infrastructure projects — found to be in the public benefit after thorough scientific and environmental reviews — from being denied access to much-needed energy by narrow state political interests.

“PennEast understood that New Jersey brought this case for political purposes, but energy crises in recent years in California, Texas and New England have clearly demonstrated why interstate natural gas infrastructure is so vital for our way of life, public safety, and enabling clean energy goals.”

The decision was met with mixed reviews in New Jersey, including:

  • U.S. Rep. Frank Pallone (D-6th Dist.), who serves as the chair of the Energy and Commerce Committee: “I am deeply disturbed and disappointed by the Supreme Court’s decision today, which sets the dangerous precedent of allowing interstate pipelines to take state-owned lands without a state’s consent. States like New Jersey should be able to retain their right to do what they wish with the lands they own, and no private actor — including pipeline companies — should be able to usurp that right. I am determined to work with my colleagues to do everything in our power to preserve this important state right.”
  • Greg Lalevee, business manager of the International Union of Operating Engineers Local 825: “Today’s decision by the high court is a win for the more than 8,000 hard-working operating engineers that go to work every day building our critical energy infrastructure. This ruling puts to rest half a decade of legal battles and makes clear once and for all the need for reliable, home-grown energy sources for our region. We are pleased by the result and are looking forward to getting to work.”
  • Mark Longo, director of the Engineers Labor-Employer Cooperative: “It has taken six years and the intervention of the United States Supreme Court, but we now have federal confirmation of the fact we have known all along — the PennEast Pipeline is legal and necessary. Today’s decision justifies all the effort put forth by the advocates for affordable and clean natural gas, and we look forward to finally seeing this project move forward.”
  • Ed Potosnak, executive director, New Jersey League of Conservation Voters: “The Supreme Court’s decision to undermine a state’s right to protect its public lands from seizure by a private pipeline developer is extremely alarming. However, the fight is far from over. PennEast is facing other legal challenges and must obtain permits from New Jersey, the U.S. Army Corps of Engineers and the Delaware River Basin Commission.”

New Jersey Attorney General Gurbir Grewal, on Twitter, said the state will fight on.

“We’re disappointed by today’s SCOTUS ruling on the PennEast pipeline, but our fight is far from over,” he tweeted. “I’m proud to continue standing up for our residents & championing environmental protection. I urge the feds to take another look at this harmful proposal.”

While the court’s decision aids the PennEast Pipeline Co., it is not necessarily the final word. A separate challenge to the pipeline involving New Jersey is pending in a federal appeals court in Washington. That appeal, of course, could eventually wind up with the Supreme Court, too.