Category: Condemnation & Eminent Domain

In a 5 to 4 decision, the United States Supreme Court ruled that PennEast Pipeline (“PennEast”) can use the power of eminent domain to take property rights from the State of New Jersey. The case in question involves a 113-mile natural gas pipeline project proposed by PennEast that requires the company to acquire real estate from private and public property owners in order to install the pipeline. Once the Federal Energy Regulatory Commission (FERC) granted its approval for the project, PennEast either negotiated the purchase of the necessary property rights or filed complaints in the United States District Court seeking to take the property rights using the power of eminent domain. The State of New Jersey opposed PennEast’s efforts to use federal courts to take property in which the State of New Jersey has an interest. The United States Third Circuit Court of Appeals ruled in 2019 that PennEast could not use federal courts to exercise the power of eminent domain to seize land from the State of New Jersey for the construction of the pipeline relying on language from the Eleventh Amendment of the United States Constitution. The Eleventh Amendment provides states with certain immunity protections barring private parties from suing states in federal court. The PennEast case raises important issues of state rights versus federal law, and implicates states’ rights of sovereign immunity.

Read More about Property Owners to Continue Fight After Setback From United States Supreme Court

Yesterday, the State of New Jersey filed its brief in opposition to PennEast Pipeline Company’s request to the United States Supreme Court (PennEast’s request is known as a “Petition for Writ of Certiorari”) to review and reverse the Third Circuit Court of Appeal’s decision holding that PennEast cannot sue the State of New Jersey in federal court. Also, nine other “friends of the court” (amicus) filed briefs in support of PennEast’s position, mostly associations that support the natural gas pipeline industry.

Read More about State of New Jersey Opposes PennEast Pipeline Company’s Request to Involve U.S. Supreme Court

The Third Circuit Court of Appeals hit PennEast Pipeline Company with another setback on November 5, 2019. The Court of Appeals denied the company’s request for a rehearing of the Court’s earlier decision, which held that the 11^th Amendment of the United States Constitution prohibits PennEast Pipeline Company from suing the State of New Jersey in Federal Court. Order Rehearing Denied 11.5.19.

So, where does PennEast go from here? We hope home, but that is unlikely.

PennEast can ask the United States Supreme Court to review the decision, however, appeals to the United States Supreme Court are not automatic and an appealing party must file a petition and ask the Court to accept the case for review. The United States Supreme Court only agrees to review about 1% to 2% of the cases where parties seek a review by the high court.

Stay tuned for the next step in the saga of PennEast versus New Jersey and its residents. PennEast is not going away, but either are the people fighting the good fight!

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?