The New Jersey Department of Environmental Protection (DEP) has again denied a water quality certification (WQC) and other key permits for the PennEast Pipeline project.
Without the approvals, the project can not move forward. DEP’s decision is the latest setback for PennEast and is likely to further delay progress on the 1 Bcf/d pipeline that’s been in the works for about five years to move more Appalachian shale gas to Pennsylvania and New Jersey.
The agency cited a ruling last month by the U.S. Court of Appeals for the Third Circuit that prevents PennEast from condemning state-owned land in New Jersey. The court concluded that the Eleventh Amendment of the U.S. Constitution bars a pipeline certificated by FERC from bringing an action in federal court under the Natural Gas Act to seize property a state owns.
Given the ruling, DEP said PennEast no longer has the legal authority to perform activities on more than 40 parcels of state-owned land along the project right-of-way. Therefore, the agency said its water quality application cannot be deemed “administratively complete.”
PennEast obtained Federal Energy Regulatory Commission approval for the project in January 2018 and promptly sued the state to condemn the land. New Jersey sought dismissal of PennEast’s complaint for lack of jurisdiction, citing the Eleventh Amendment of the U.S. Constitution, which recognizes that states have sovereign immunity from lawsuits by private parties in federal court.
Project sponsors have already asked FERC to issue a declaratory order clarifying the eminent domain authority pipeline developers have to condemn all land necessary for a project. Such an order, PennEast said in its petition, would help guide the courts through further proceedings.
“PennEast is confident the legal actions will be resolved favorably and the long-standing legal precedent under which FERC has operated to bring needed, clean, reliable and affordable energy to consumers will be upheld,” project spokesperson Patrica Kornick said. She added that the pipeline’s sponsors remain firmly committed to the project.
DEP had deemed PennEast’s WQC application incomplete last month and requested more information, which it received from the company.
The agency closed its environmental review of the project and denied the application over incomplete information about two years ago, as well. New Jersey has largely resisted the project, having also asked FERC last year to scrap its certificate. About one-third of the 120-mile pipeline would be in New Jersey’s Hunterdon and Mercer counties.
Democratic Gov. Phil Murphy said on Twitter that his “administration fought and won in court to stop” PennEast. He also noted a draft plan unveiled over the summer aimed at transitioning the state to 100% alternative energy.