Appeals court deals blow to proposed pipeline

The U.S. Court of Appeals for the Third Circuit dealt a major blow to a proposed pipeline slated to run through parts of Carbon and Monroe counties when it rejected a request for a rehearing on the use of eminent domain to acquire properties in New Jersey.

In September, the court ruled that PennEast can’t use eminent domain to acquire 42 properties that are owned by the state and preserved for farmland or open space.

The judges wrote that while the federal Natural Gas Act allows private gas companies to exercise the federal government’s power to take property by eminent domain, that doesn’t extend to state-owned properties.

The properties fall under the 11th Amendment, which protects states from lawsuits by private parties in federal court, the panel concluded.

“We won’t hesitate to stand up to private companies when their actions violate the law — in this case the U.S. Constitution,” New Jersey Attorney General Gurbir Grewal said in a statement on the court’s rejection of a rehearing. “From the beginning, we’ve made clear that the 11th Amendment prohibits private pipeline companies like PennEast from condemning state properties for private use. We’re pleased that the Third Circuit agreed with our position. The Third Circuit’s decision not to rehear this case is great news for New Jersey and the environment.”

Patricia Kornick, spokeswoman for PennEast, said the company remains committed to the pipeline and is evaluating its options following the court’s decision.

The pipeline has received plenty of local opposition, namely from the group Save Carbon County.

“This halts another PennEast legal attempt to gain traction on its proposed pipeline,” SCC President Linda Christman said in response to the court’s decision. “Another closed door. PennEast still has the option of appealing the decision to the Supreme Court, but the Supreme Court only takes 2% of the cases presented to them, and the original ruling by the Third Circuit is supported by a similar ruling by another circuit court on a similar issue.”

PennEast garnered approval last year from the U.S. Federal Energy Regulatory Commission to build the roughly 120-mile pipeline, which would stretch from Luzerne County to Trenton, New Jersey, and snake through Kidder, Penn Forest, Towamensing and Lower Towamensing townships in Carbon County, and Eldred Township in Monroe County on its way.

Various groups including the state of New Jersey appealed that decision, which is still pending.

After receiving FERC’s approval, PennEast filed condemnation petitions in New Jersey for 131 properties, including the 42 owned by the state, which were part of the appeals court’s decision.

PennEast officials said if built, the $1 billion pipeline would deliver 1.1 billion cubic feet per day of gas from the Marcellus Shale formation in Pennsylvania to customers in Pennsylvania and New Jersey.

PennEast’s website still indicates a proposed timeline that would have the line operational in 2020.