The US Supreme Court agreed Feb. 3 to review a court fight over the right-of-way asserted by PennEast Pipeline Co. LLC for a proposed natural gas line in New Jersey.
New Jersey has refused to allow the company to use eminent domain law to build the pipeline across two state-owned properties and 40 parcels of land where the state has obtained easements for conservation, recreation or agricultural purposes.
The Supreme Court set the case for oral argument in April. The court directed parties to prepare to argue not only the details of PennEast’s suit against New Jersey but the constitutional question of whether the US Court of Appeals for the Third Circuit properly exercised jurisdiction when it ruled in New Jersey’s favor.
New Jersey’s position is that the Eleventh Amendment to the Constitution bars PennEast from suing the state. That amendment says, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.”
The case is PennEast Pipeline Co. LLC v. New Jersey.
Hoping to avoid state vetoes
PennEast and the Interstate Natural Gas Association of America welcomed the Supreme Court’s decision.
“Congress passed the Natural Gas Act specifically to avoid state and local vetoes of interstate projects found by federal regulators to be in the public need and benefit,” PennEast said in a statement issued Feb. 3.
“The misguided Third Circuit ruling in fall 2019 turned nearly 80 years of federal government interpretation and industry practice on their heads,” the company said.
Industry spokesmen have warned that if New Jersey’s position is upheld, states and private property owners could block pipelines through agreements on conservation easements straddling the planned route.
A similar legal obstacle has stymied a Columbia Gas Transmission LLC project in Maryland, as Columbia Gas informed the Supreme Court in a brief supporting PennEast’s petition.
The Federal Energy Regulatory Commission, with authority under the Natural Gas Act to approve the routes of interstate gas pipelines, approved the PennEast project in 2018. The act includes a provision for pipeline companies to exercise eminent domain.
PennEast, a limited liability company, is owned by a Spectra Energy Corp. master limited partnership and business units of gas utility New Jersey Resources Corp., gas and electric utility UGI Corp., gas utility South Jersey Industries Inc., and Southern Co.
The project, originating in Pennsylvania and running eastward, would be 116 miles long plus 4 miles of laterals. The company now estimates it could place the project in service in 2024.
