Challenge to PennEast Pipeline Falters on Jurisdiction

TRENTON, N.J. (CN) – PennEast’s plans for a 120-mile natural-gas pipeline have one fewer obstacle to clear after a federal judge nixed a challenge Monday by environmentalists.

Dismissing the suit by the New Jersey Conservation Foundation — which owns over 20,000 acres of land including two lots in Hunterdon County where the $1 billion pipeline will run — U.S. District Judge Freda Wolfson ruled that the group’s claims are “inextricably interwoven with the merits” of an eminent-domain order by the U.S. Federal Energy Regulatory Commission.

She said such orders strip U.S. District Court judges like herself of jurisdiction over challenges, which must instead be heard by the U.S. Court of Appeals for either the Third or D.C. Circuits.

Environmental groups have critical of the PennEast pipeline, which is scheduled for construction in early 2019, since its early stages back in 2015.

When the New Jersey Conservation Foundation brought the suit here last fall, it claimed that the commission adopted the eminent-domain decision without a proper review.

Alleging violations of the Fifth Amendment’s Taking Clause, the group predicted that the pipeline would damage 4,300 acres of permanently preserved open space and farmland.

New Jersey’s attorney general also opposed eminent domain, saying at the time that the PennEast Pipeline Company had “failed to even attempt to contract with the state” to acquire the property interests.

Another part of the nonprofit group’s challenge asserts that FERC’s certification means that, even if the pipeline is never built, private developers could still build on the land.

Wolfson found Monday, however, that the foundation has no standing to sue because the Natural Gas Act vests jurisdiction over such disputes with either the U.S. Court of Appeals for the District of Columbia or the Third Circuit.

The law is “well settled” regarding NGA jurisdiction, Wolfson added, noting that several courts had interpreted the NGA to deny District Courts the ability to review or modify FERC orders.

“Indeed, constitutional challenges to FERC’s actions, or the NGA itself for that matter, have all been found to be subject to the jurisdictional provision of the NGA,” the 36-page ruling states.

Wolfson also called out the foundation for seeking a remedy to potential economic injury from losing its land to the pipeline, as well as challenging the constitutionality of FERC’s decision.

“Plaintiff cannot have it both ways,” Wolfson wrote. “By seeking to invalidate the certificate at issue, plaintiff’s claims would necessarily fall within the exclusive jurisdiction of the appropriate court of appeals.”

Denying that the ruling strips the foundation of its constitutional right to judicial review, Wolfson said it can still raise its challenge with the appropriate court of appeals.

PennEast submitted an application to build the pipeline in 2015, after which FERC reviewed the environmental impact of construction. Certification to build was granted in January, subject to certain environmental and operating conditions.

Environmental groups like the foundation and the Delaware Riverkeeper Network filed a number of appeals and lawsuits seeking to block construction.

In February, FERC denied rehearing the environmental groups’ concerns, after which the foundation sued.

The pipeline, which is estimated to deliver nearly 1 billion cubic feet of natural gas daily, would start in Pennsylvania and run through New Jersey. As part of the construction, PennEast is attempting to seize 149 of 211 New Jersey properties in the pipeline’s path.

PennEast has said the pipeline could have saved New Jerseyites more than $435 million in energy costs during the 2017-2018 winter.

Jennifer Danis, an attorney at Columbia University who represents the foundation, noted that no decision has been made yet regarding an appeal.

“This challenge was not PennEast specific, although the court treated it as such,” she said. “This decision puts the burden on landowners along each pipeline to defend their rights in court, rather than having the opportunity to affirmatively and broadly address FERC’s unconstitutional practices across the country.”

%d bloggers like this: