The anti-drilling zealots that populate the levers of power in New Jersey, along with their colluding Big Green compatriots, continue a holy mission to block PennEast Pipeline, a pipeline the majority of which will get built in Pennsylvania. Anti-pipeline nutters are attacking the project on several fronts, including in the courts, and by claiming the pipeline would affect nine “potential” historic sites along its path through NJ. Will federal courts and regulators fall for the ruse?
Two weeks ago the NJ Attorney General (Democrat) filed paperwork in federal court challenging a recent court decision that allows PennEast to use eminent domain to begin construction on land along the pipeline’s route, including land owned by the state.
New Jersey on Thursday urged the Third Circuit to overturn a lower court’s decision allowing the PennEast Pipeline Co. to file condemnation lawsuits against the state for land the company wants for a $1 billion natural gas pipeline project.
The state said that while the federal government would have authority to file condemnation proceedings against it, U.S. District Judge Brian Martinotti was wrong to have ruled in December that PennEast was delegated the federal government’s authority via a certificate of public convenience and necessity issued by the Federal Energy Regulatory Commission.
Citing the U.S. Supreme Court’s 1991 decision in Blatchford v. Native Village of Noatak, New Jersey said that while states may be hauled into court in lawsuits filed by other states and the federal government, private parties do not enjoy the same privilege.
“That is why other lower courts have consistently rejected (or cast doubt on) the notion that the federal government can ‘delegate’ its exemption from state sovereign immunity to a private party,” New Jersey said. “This decision is an outlier, and one that undermines New Jersey’s longstanding sovereign rights.”
Even if that were not the case, the state said, Congress did not delegate its exemption from state sovereign immunity in the Natural Gas Act. It said that although the NGA authorizes private parties to file eminent domain actions, that should not be interpreted as authorization to file those actions against states.
There is an alternative, New Jersey said: “Sovereign immunity does not prevent the United States from condemning these same property interests, paying New Jersey just compensation, and transferring the interests to PennEast.”
Judge Martinotti had also said nothing in the NGA requires companies to negotiate in good faith with landowners before pursuing eminent domain. New Jersey argued that the eminent domain actions must also fail because the company did not engage in such negotiations.
“Despite the statutory language, PennEast did not even attempt to contract with New Jersey for 41 of the 42 state property interests it sued to condemn,” the state said.
In March the Third Circuit said PennEast must wait to begin construction on its pipeline while the court hears New Jersey’s challenge. Judge Martinotti had refused to grant such a pause.
Separately, the New Jersey Department of Environmental Protection and the Delaware and Raritan Canal Commission have filed a petition asking the D.C. Circuit to review FERC’s January 2018 decision to greenlight construction of the controversial pipeline.
PennEast has argued that New Jersey actually asked that the pipeline cross much of the land that it now claims would be damaged, with the company saying it only wants to survey the land to see if it’s fit for the pipeline. The developer also noted that New Jersey for decades has allowed other pipelines to run through protected land. (1)
The latest line of attack is to abuse “historic” site preservation. “Look! Look! The pipeline will run across that old, broken down farm where George Washington once took a leak out in the field!”
Opponents of the PennEast Pipeline are cheering the discovery that nine properties along its proposed route in New Jersey could qualify for historic designation, creating yet another hurdle for the project and raising the prospect of further delays.
Katherine Marcopul, deputy state historic preservation officer for New Jersey, disagreed with a firm hired by PennEast Pipeline Co. that recommended only three properties in Warren and Hunterdon counties be considered for the state and national registers of historic places.
Several more sites require further study, Marcopul wrote in an April 17 letter. All have structures dating from the early to mid-19th century and could be significant in the history of Hunterdon County agriculture, she said.
Patricia Kornick, a spokeswoman for the PennEast Pipeline project, said the company has requested a meeting with New Jersey’s Historical Preservation Office to learn more about the sites. The company could be forced to tweak its plans to mitigate impact on the sites.
“We are committed to minimizing as much as possible the environmental footprint of the PennEast pipeline and will continue to work with the historic preservation organization as well as other organizations to best accomplish that,” Kornick said.
Environmental advocates who have been fighting the project for years said they were pleased New Jersey officials are working to preserve the state’s history and welcomed any delay the letter could cause.
“It could force them to make some significant changes to the project, and that’s always difficult for them,” said Tom Gilbert, campaign director for the New Jersey Conservation Foundation. “Time is money, and sometimes projects get delayed to death. And that’s certainly a possibility here.”
PennEast has already had to push back its target date for starting construction on the $1 billion project, which would carry Marcellus Shale gas from Luzerne County in northeastern Pennsylvania about 120 miles to Mercer County in New Jersey.
The company has said the line will bring needed natural gas to New Jersey and benefit households by providing cheaper energy. Opponents, however, are fiercely opposed to a project they say is unnecessary and poses a threat to sensitive habitat, open space, and waterways.
The project has received key approvals from the Federal Energy Regulatory Commission and Pennsylvania regulators but still needs permits from the Delaware River Basin Commission and the New Jersey Department of Environmental Protection. The project crosses dozens of waterways, including the Delaware, Lehigh and Susquehanna rivers.
Marcopul, the historic preservation officer, and the firm hired by PennEast agreed on three sites that should be considered for the state and national historic registers. They are the Belvidere-Delaware Railroad historic district that runs from Warren County to Mercer County; the Hoagland Farmstead in West Amwell; and a 19th-century Gothic Revival house in Kingwood. (2)
And so it goes. Just another day in the fossil fuel industry, battling back against numskulls and ne’er-do-wells.
(1) Law360 (Apr 19, 2019) – NJ Urges 3rd Circ. To Stop PennEast Pipeline Condemnations
(2) Harrisburg (PA) WITF PBS (Apr 28, 2019) – NJ finds nine potential historic sites in PennEast pipeline’s path. They could be the project’s latest hurdle
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