Author: tduggan

What is the status of the PennEast Pipeline project?

With the recent confirmation of two new commissioners, a quorum has been restored in the Federal Energy Regulatory Commission (FERC). This likely means that FERC will soon begin addressing the approval of natural gas pipeline projects, including the PennEast Pipeline.

The PennEast Pipeline project received its final environmental impact statement from FERC in April 2017.

In the next step in the approval process, FERC will decide whether to issue a Certificate of Public Convenience and Necessity under Section 7 of the federal Natural Gas Act. Once a Certificate is issued, as is probable, FERC will convey the power of eminent domain to the PennEast Pipeline project owners. PennEast will then use the power of eminent domain to take private property to construct the pipeline along a right-of-way approved by FERC.

Read More about Can Anything Be Done to Stop the PennEast Pipeline?

New Jersey approved a gas tax in 2016 to replenish the New Jersey Transportation Fund. The proceeds of the tax are to be used to make infrastructure improvements throughout New Jersey. In addition, the Trump administration recently announced a policy to support infrastructure projects on a national level.

Read More about NJ Gas Tax, Federal Infrastructure Projects, and Eminent Domain

Modification of highway access is one of the most problematic and confusing areas of the law. As a general rule, the government’s use of its “police power” enables it to regulate the state highway system. In New Jersey, the government also has the benefit of the Highway Access Management Act.

In adopting the Highway Access Management Act, the New Jersey Legislature declared: (1) “[t]he State has a public trust responsibility to manage and maintain effectively each highway within the State highway system to preserve its functional integrity and public purpose for the present and future generations” (N.J.S.A. 27:7-90c), and (2) “[t]he access rights of an owner of property abutting a State highway must be held subordinate to the public’s right and interest in a safe and efficient highway.” (N.J.S.A. 27:7-90g).

Often, the government will use these powers to change access to a property and refuse to pay just compensation or damages to the owner. If the change in access is severe but does not rise to the level of an actual taking, the property owner may be left with no recourse. This article provides a brief overview of the process for the modification of highway access.

Read More about Modification of Road Access: Do Not Sit on Your Rights!

What is eminent domain and who uses it?

Eminent Domain is the power of the government to take private property and convert it into public use. Government agencies that use eminent domain include state government agencies like the Transportation department and local agencies tied to the municipalities. “The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners.” This means if the government wants your land for public use it must buy it from you at fair market rates. Usually it tries to buy your property before going through the condemnation process.

Read More about Eminent Domain and Condemnation Frequently Asked Questions

Negotiating the conveyance of land rights with an experienced negotiator is often difficult and confusing at best. Terms such as temporary construction easement, slope easement, and fee simple interests are thrown around as if the public knows what they mean. Some terms also have acronyms (“TCE” for temporary construction easements or “SE” for slope easements), which further confuse matters. Below we will address some of the more frequently asked questions that we receive from property owners negotiating with pipeline companies prior to the filing of an eminent domain case.

Read More about Frequently Asked Questions on Negotiating Pipeline Easements

A plain reading of the Fifth Amendment to the United States Constitution, commonly referred to as the “Taking Clause,” appears on its face to limit the government’s right to take private property only in instances where the property will be put to a public use. However, over the years, the United States Supreme Court has expanded the scope of the Taking Clause to include takings where there is a “public benefit” rather than just a use.

Read More about Is the PennEast Pipeline Taking Really for the Public’s Benefit?