The U.S. Supreme Court on Wednesday decided to hear PennEast’s appeal of a lower federal court ruling that the State of New Jersey could stop PennEast from using eminent domain to acquire state-owned land for a natural gas pipeline.
The highest court in the country decided to hear the case in April.
The case will turn on the legal question of whether the Court of Appeals properly exercised jurisdiction over the case that revolves around the Constitution’s 11th Amendment and states’ rights.
The proposed $1 billion, 110-mile natural gas pipeline from Luzerne County, Pennsylvania, would cross the Delaware River north of Milford, then parallel the river through western Hunterdon County before ending at Transco’s trans-continental pipeline near Pennington in Mercer County.
Federal law gives pipeline companies like PennEast the legal power of eminent domain to go to court to purchase land for their projects.
In September 2019 the Court of Appeals for the Third Circuit ruled that PennEast’s eminent domain lawsuits against New Jersey in federal court are barred by the 11th Amendment, which gives states sovereign immunity from litigation by private parties in federal court.
PennEast then appealed the case to the Supreme Court, arguing that the Third Circuit decision could affect pipeline projects across the country and give states veto power on the projects.
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PennEast hailed the Supreme Court’s decision to hear the case.
“We remain hopeful that after hearing full arguments this term, the U.S. Supreme Court will agree that the Third Circuit’s decision was profoundly wrong,” Tony Cox, chair of PennEast’s board of managers, said in a statement.
Cox said the court’s decision “is a major step forward in upholding Congress’ clear charge to the Federal Energy Regulatory Commission to ensure the availability of affordable domestic energy, delivered safely and reliably via natural gas infrastructure.”
Cox said the “misguided” Court of Appeals decision “turned nearly 80 years of federal government interpretation and industry practice on their heads.”
Cox said PennEast will continue working to obtain approvals from Pennsylvania regulators.
“We continue to work with all regulators to move the project forward, and meet the well-established needs of our customers,” Cox said, adding the first phase of the project could be completed in 2022.
Environmentalists have opposed the project since it was unveiled in 2014.
“We need our highest court to reaffirm to fossil fuel companies that they do not have the ability to trample over the rights of the state to protect its natural resources for the benefit of its communities,” Maya van Rossum, leader of the Delaware Riverkeeper Network, a leading opponent of the pipeline, said in a statement. “While we believe the PennEast Pipeline Co. was premature in taking the case before the Supreme Court, we have confidence in the court to make the right decision and protect the sovereign immunity of the states.”
Van Rossum said the Supreme Court decision is key to protecting the rights of states.
“The law is clear, and the 11th Amendment protects New Jersey from seizures by private companies using eminent domain,” van Rossum continued. “The Supreme Court should uphold the Third Circuit ruling and protect states from federal overreach. States’ rights have been under constant assault throughout the Trump administration, and even now, the information before the court includes Trump’s Solicitor General’s legally flawed brief that desperately attempts to bolster PennEast. I doubt the current administration would put the rights of a fossil fuel company before the rights of the states.”
Mike Deak is a reporter for mycentraljersey.com. To get unlimited access to his articles on Somerset and Hunterdon counties, please subscribe or activate your digital account today.