Jim Willis
Editor & Publisher, Marcellus Drilling News (MDN)

PennEast Pipeline is working its way through the usual morass of enviro lawsuits and the courts are treating it fairly, which is annoying the PovertyKeeper.

It’s hard to keep track of the multiple lawsuits filed against every single new natural gas pipeline project in the Marcellus/Utica. But we try! Take the PennEast Pipeline, for example. PennEast is a $1 billion (or $1.2 billion, depending on the source) new greenfield pipeline project from Luzerne County, PA to Mercer County, NJ. PennEast will flow Pennsylvania Marcellus gas to markets in New Jersey. The project has faced numerous lawsuits and regulatory blockades, much of it in New Jersey. There are two different lawsuits of current interest, with one affecting the other.

NOT the PovertyKeeper, but…

THE Delaware Riverkeeper, Maya van Rossum (she who arrogantly presumes to speak for the entire Delaware River watershed), filed a lawsuit in August 2018 against the Federal Energy Regulatory Commission (FERC) with the U.S. Court of Appeals for the District of Columbia, which is the court that hears appeals of FERC decisions. Miss Maya is trying to convince the D.C. Circuit to overturn FERC’s decision to approve the PennEast project, which would kill the project.

Meanwhile, the State of New Jersey, now under anti-fossil fuel Democrat control, sued to block PennEast from crossing state-controlled parcels of land. They sued in the U.S. Court of Appeals for the Third Circuit, arguing that a private company (PennEast) cannot use government eminent domain to “seize” and cross state-owned or state-controlled land. PennEast needs to cross some 44 parcels that the state either owns the surface rights to, or owns the mineral rights to. In September, the Third Circuit ruled in favor of New Jersey. [More here.]

The Third Circuit case is now impacting the D.C. Circuit case.

Oral arguments were due to be heard this week in the D.C. Circuit, but now that PennEast can’t cross a significant portion of the land it needs to (because of the Third Circuit case), PennEast asked the D.C. court to put their case on hold. PennEast needs more time to decide next steps in the Third Circuit case–whether it will appeal it to the Supreme Court, or (we suppose) try to figure out a new route for the pipeline that avoids all state-controlled land.

In other words, the D.C. case is now not “ripe”–not ready to be decided–until PennEast knows whether or not it will even continue with the project. Why decide FERC was right or wrong if the entire project is now up in the air? So the D.C. court agreed to suspend their case, for the time being. And that makes Miss Maya mad. She wanted to pound the final nail in the coffin of PennEast herself, dang it. And, now, according to Law360, the D.C. Circuit won’t let her.

The D.C. Circuit put on hold oral arguments scheduled for this week in a challenge to the Federal Energy Regulatory Commission’s approval of the $1 billion PennEast gas pipeline, to allow appeals to play out from a Third Circuit decision that developers can’t seize state-owned land for the project.

The D.C. Circuit decided Tuesday to postpone the oral argument that was scheduled for Friday and placed the case in abeyance until any final disposition of the Third Circuit case or a potential U.S. Supreme Court appeal of that ruling. The court previously questioned whether the case was even still ripe in light of the Third Circuit’s Sept. 10 ruling that New Jersey had 11th Amendment immunity against PennEast’s condemnation efforts.

On Wednesday, PennEast asked the Third Circuit for more time to decide whether it will seek rehearing of the court’s decision.

Challenges to the 116-mile PennEast pipeline that would run through Pennsylvania and New Jersey have taken place on multiple judicial fronts. In the D.C. Circuit, the New Jersey Department of Environmental Protection and two other state agencies, as well as several conservation groups, claim FERC approved the project without showing that it was needed and without adequately reviewing its environmental impacts.

Meanwhile, some of the same conservation groups and New Jersey officials also challenged how PennEast acquires property for the pipeline. A New Jersey federal judge had ruled that PennEast had the federal government’s authority to condemn the land, but the Third Circuit said the developers couldn’t seize land owned by New Jersey because the Natural Gas Act doesn’t trump the state’s 11th Amendment sovereign immunity from condemnation suits by private companies…

New Jersey state agencies then asked the D.C. Circuit to put its case on hold until any potential rehearings or appeals of the Third Circuit’s ruling…

Ultimately, the D.C. Circuit decided a stay pending any Third Circuit appeal was the correct course. Rehearing bids in the Third Circuit case are due Oct. 8, but PennEast on Wednesday asked the court to extend the deadline to Oct. 22…

Delaware Riverkeeper Maya van Rossum said she’s disappointed that the D.C. Circuit put the case on hold without staying FERC’s construction certificate as well.

“As we’ve seen with so many other pipelines, when there is a FERC certificate in place, the pipeline companies inevitably find a way to move the project forward even without having all the permits and approvals necessary, and FERC is very quick to give the pipeline companies their requested notices to proceed, like tree felling and exercising eminent domain,” van Rossum told Law360 Wednesday. “We are left in this legal limbo, unable to pursue our challenge, but the pipeline company and FERC are left in a situation where they have a very significant leg up.”

Editor’s Note: Anyone who has dealt with the Delaware PovertyKeeper can appreciate how she might have reacted to the DC Circuit’s stay. The picture above, of course, isn’t her but one suspects it artfully captures the moment. Meanwhile, isn’t it interesting she describes FERC and the PennEast as having a “very significant leg up” in this case. Let’s hope so!

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