New Jersey officials have asked a federal appeals court to overturn a lower court ruling allowing PennEast Pipeline Co. LLC to begin eminent domain procedures on 42 parcels of land where the state holds property interests.
In U.S. Court of Appeals for the Third Circuit last Thursday, the state said land threatened by condemnation proceedings for the 116-mile PennEast Pipeline includes lands “preserved specifically for recreational, conservation and agricultural uses,” and includes property interests that the state paid more than $1 million to obtain.
The appellate court stayed construction of the pipeline last month, pending appeal of PennEast using eminent domain. Last December, in U.S. District Court for the District of New Jersey, Judge Brian Martinotti ruled that PennEast’s certificate order from FERC entitled it to survey access on an expedited basis and dismissed efforts by New Jersey Attorney General Gurbir Grewal to block access to the state parcels.
Grewal and attorneys for the state argue that Martinotti erred when he ruled that the federal government could delegate its exemption from state sovereign immunity to PennEast, and that it was wrong for the court to conclude that the Federal Energy Regulatory Commission had done as much when it authorized the pipeline in January 2018.
New Jersey also told the Third Circuit that it could reverse Martinotti’s ruling on the grounds that the Natural Gas Act (NGA) has nothing about condemnation of state property interests, or that PennEast ran afoul of the NGA by not attempting to first negotiate with the state over the property interests before beginning eminent domain procedures.
State officials have battled PennEast Pipeline for years. The New Jersey Department of Environmental Protection denied a water quality certification for the project in 2017, deeming it incomplete. The state has also targeted FERC’s approval of the project.
PennEast would move more than 1 Bcf/d from northeastern Pennsylvania to New Jersey. About one-third of the pipeline would be in the New Jersey counties of Hunterdon and Mercer.
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