In light of a recent decision from the U.S. Court of Appeals for the Third Circuit that upended nearly 80 years of practice by the natural gas industry and disregarded Congress’s intent in enacting a critical provision of the Natural Gas Act, the PennEast Pipeline Company announced it will be seeking further review in the Supreme Court of the United States.
In September, a three-judge panel of the Third Circuit held that the State of New Jersey’s Eleventh Amendment immunity protected it from efforts of a private company to exercise expressly delegated federal eminent domain authority to condemn easements necessary to construct federally approved natural gas infrastructure project. The decision threatens to disrupt longstanding industry practice and halt natural gas infrastructure development that has lowered energy bills, powered economic development, and has resulted in the U.S. leading the world in carbon emission reductions.
“The PennEast partner companies are fully committed to the project, and will be seeking review by the U.S. Supreme Court. The Third Circuit’s decision has implications far beyond the PennEast project. No interstate pipeline nationwide of any significant length can be built without crossing land where a state claims an interest,” said Anthony Cox, Chairman of the PennEast Pipeline Company Board of Managers. “State governments, just like other landowners, should not be allowed to disrupt or veto vital energy infrastructure that expert federal regulators have found to be in the public interest.”
Notably, the Federal Energy Regulatory Commission approved the current route for the PennEast Pipeline fully understanding that it crosses properties in which the State of New Jersey claims an interest. FERC approved that route after accepting the State’s urging that the pipeline be co-located with existing rights-of-way to minimize environmental impacts – primarily aligning the pipeline with overhead power lines that have been in place for decades, on land where the state claims an interest. Three federal agencies and the Pennsylvania Department of Environmental Protection have already found PennEast to be safe for the environment.
“Demand for natural gas continues to grow, and new infrastructure across the Northeast has not kept up, in part due to politics and regulatory delays,” added Cox. “The result has been forced gas moratoriums that threaten customer reliability, higher energy bills and higher carbon emissions.”
The announcement comes on the heels of a mid-November arctic blast that will drive northeast temperatures to chilling cold, with wind chills in the teens, throughout the week.
Through the Third Circuit litigation and other legal actions, the State of New Jersey has moved to block needed supplies of natural gas, even though 75 percent of New Jersey homes rely on it for heating, and utility companies are raising alarms about their ability to meet customer demand in coming winters. Gas moratoriums in place in New York City and Massachusetts due to delayed pipeline construction foreshadow what is on the horizon in New Jersey. There, moratoriums have forced small businesses to close, halted affordable housing projects, thrown major development projects into chaos, and forced residents to continue to rely on fuel oil for heat, generating higher carbon emissions.
The PennEast Pipeline Company plans to file with the Supreme Court by its early February deadline.