PennEast Pipeline Co. LLC said Thursday it is taking a fight with New Jersey over its ability to exercise eminent domain to the U.S. Supreme Court.
After failing to convince the U.S. Court of Appeals for the Third Circuit that its FERC certificate would allow it to condemn land needed for the 120-mile project, the company said it would file with the Supreme Court by its February deadline.
The PennEast partner companies “are fully committed to the project,” said Chairman Anthony Cox.
“The Third Circuit’s decision has implications far beyond the PennEast project,” he said. “No interstate pipeline nationwide of any significant length can be built without crossing land where a state claims an interest.
“State governments, just like other landowners, should not be allowed to disrupt or veto vital energy infrastructure that expert federal regulators have found to be in the public interest.”
The Third Circuit’s ruling has prevented PennEast from condemning 42 parcels owned by the state.
PennEast obtained Federal Energy Regulatory Commission approval for the project in January 2018 and sued the state to condemn the land. New Jersey sought to dismiss the 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.
Certificates issued by FERC under the Natural Gas Act allow private gas companies to take property by eminent domain. However, in its opinion, the Third Circuit said New Jersey’s sovereign immunity wasn’t revoked by the project’s certificate, “nor has there been -- as PennEast argues -- a delegation of the federal government’s exemption from the state’s sovereign immunity.”
The Third Circuit denied a petition for rehearing earlier this month, opening the door for the Supreme Court review.
PennEast said Thursday FERC approved the current route with an understanding that it would cross properties in which New Jersey has an interest. FERC approved the route, PennEast added, after the state urged that the pipeline be co-located within existing rights-of-way for power lines that have been in place for decades.
The company warned that the Third Circuit’s decision could upend decades of precedent and “threatens to disrupt longstanding industry practice and halt natural gas infrastructure.”
The project, about one-third of which would be in New Jersey’s Hunterdon and Mercer counties, would move more than 1 Bcf/d from Appalachia into the state and parts of Pennsylvania.
PennEast’s intent to take the matter before the Supreme Court comes at a time of polarization over natural gas infrastructure projects in the Northeast. PennEast has been in the works for about five years as it’s battled through delays. New Jersey has resisted the project and previously denied a water quality certification and other key permits.
The Supreme Court has already agreed to hear a challenge by Atlantic Coast Pipeline LLC (ACP) to an appeals court ruling that has jeopardized that project’s ability to cross the Appalachian National Scenic Trail. ACP would also serve growing natural gas production in the Marcellus and Utica shales.