Federal judge’s memorandum favors PennEast in eminent domain case

A U.S. District Court judge has issued a memorandum that favors the PennEast pipeline company in an eminent domain case it filed against a Towamensing Township property owner, saying the energy company has the right to take property at this time, even though a certificate of public convenience and necessity issued by the Federal Energy Regulatory Commission is subject to conditions that are unmet at this time.

Judge Malachy E. Mannion of the U.S. District Court, Middle District of Pennsylvania, issued the memorandum Dec. 3 against Susana V. Bullrich, whose property is subject to the eminent domain proceeding. The memo states an “appropriate order shall follow.”

PennEast is seeking permanent and temporary easements, both being 0.6 of an acre, to continue its plans for the construction, operation and maintenance of the pipeline that it wants to route through portions of Pennsylvania and New Jersey.

Bullrich’s argument mainly contends that because PennEast still has not received approvals of the FERC certificate conditions in New Jersey, the pipeline may never be built, and that the taking of her land should therefore be denied.

The defendant alleges the court lacks subject matter jurisdiction; that PennEast failed to show there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law; and that if her property is taken before a judicial pre-deprivation hearing is held, the taking will violate her due process rights under the Fifth Amendment to the Constitution.

But the judge’s memorandum called Bullrich’s arguments “unpersuasive,” saying the defendant cannot establish any genuine issue of material fact as to the conditions set forth in the Natural Gas Act required prior to the exercise of eminent domain by PennEast.

In the memorandum, the case background shows the Natural Gas Act permits the holder of a certificate of public convenience and necessity to use eminent domain to acquire rights of way to construct the pipeline. PennEast received that certificate on Jan. 19, and on Feb. 6, proceeded with the eminent domain case, saying it needs to obtain rights of way in order to construct the pipeline.

Bullrich contested the filing in a brief in opposition to PennEast’s accompanying motion for summary.

In that brief, the defendant contends that although PennEast is the holder of a certificate of public convenience and necessity, the FERC-approved pipeline order is conditional and the “project may never be built.”

Mannion, however, disagreed.

His memorandum states the “NGA does not contain a requirement that the holder of a FERC certificate must satisfy all conditions of the certificate prior to the exercise of eminent domain.”

To the contrary, the judge wrote, NGA regulations and the FERC order authorize a certificate holder to acquire the land it needs “if it cannot acquire the easement by an agreement with the landowner.”

Mannion further states Bullrich’s pleadings do not cite any binding authority holding Penn­East’s certificate to be prohibited until the FERC conditions are met, and wrote that fulfillment of the conditions “is not a prerequisite to the exercise of eminent domain.”

The judge states, “Without access to the Bullrich property, Penn­East will never be able to fulfill the necessary preconditions and receive those approvals. Such a result would make a mockery of the process.”

Similarly, the court said Penn­East’s application in New Jersey was denied because “it lacked necessary information to determine compliance with the freshwater wetland rules,” but said, “the denial was not final,” pointing out PennEast can resubmit a new complete application to the New Jersey Department of Environmental Protection when it has secured all of the information it needs.

That process has also been held up by the company’s inability to gain access to the properties it needs in the neighboring state.