PennEast Seeks Supreme Court Review–November 19th 2019
PennEast announced last Thursday (November 14th) that it will ask the U.S. Supreme Court to review the decision of the U.S. Court of Appeals for the Third Circuit that said PennEast could not take the State of New Jersey into court to take possession of state land.
This move was anticipated. We expected PennEast to ask the Supreme Court to overturn the Third Circuit’s decision because otherwise it lacks options for moving forward with its pipeline project. In addition, PennEast has to show its investors and FERC that it is doing everything it can to get the project built. Otherwise, FERC would have grounds to withdraw its certificate.
Review is not automatic. No one knows whether the high court will hear this case. On average, the Supreme Court only takes 1 to 2% of the cases it is asked to review, and usually only takes cases where circuit courts have issued opposing opinions on the law. That is not the case here. PennEast will argue that it is in the national interest to build pipelines and the Third Circuit’s decision interferes with that national policy. New Jersey, on the other hand, will assert its sovereign immunity under the Eleventh Amendment of the U.S. Constitution. This forbids private companies, like PennEast, from suing states unless the right has been waived by the state or by Congress.
If heard, what is the likely outcome? This move by PennEast will cause another extensive delay. If the Supreme Court were to take the case next spring, oral arguments would probably be scheduled in the fall of 2020, with a decision issued during the first half of 2021. No one can accurately predict what the Supreme Court would decide and when it will make that decision.
Steps in the meantime. HALT, and its members and allies, are aligning to support the State of New Jersey to ensure that our resources are made available and our voices heard. Remember, the pipeline cannot be built while the Supreme Court decides whether to take the case or unless it issues an order overturning the Third Circuit’s decision. If it does take the case, it would probably not issue a decision until the winter or spring of 2021. If it doesn’t take the case or doesn’t overturn the decision, PennEast may not be able to proceed.
We will keep you abreast of events as they unfold!
Where Things Stand At This Time–November 4th & 5th 2019
Updated on 11/5/2019
The Third Circuit decided NOT to grant PennEast’s application to rehear or reconsider its prior decision in favor of the State of New Jersey. Thus, PennEast does not have the right to condemn the land on which New Jersey has an ownership interest. This halts another PennEast legal attempt to gain traction on its proposed pipeline. Another closed door.
As stated in our prior newsletter, PennEast may, or may not, petition the Supreme Court to hear its case. We will keep you posted. In the meantime, enjoy this favorable decision from the Third Circuit!
November 4th Post:
As most of you know, the US Court of Appeals for the Third Circuit issued an important decision on September 10, 2019. The Court said the State of New Jersey has sovereign immunity, which means PennEast cannot take the State to court in order to condemn the forty-two parcels of land on which New Jersey has an ownership interest. Although, the Third Circuit’s decision does not affect the parcels on which the state does not have a property interest, this presents a significant obstacle to PennEast’s plans to build the pipeline.
On October 22, 2019 PennEast asked all of the judges on the Third Circuit Court to reconsider the decision made by the panel of three judges. It is unusual for a full Court to overrule a unanimous decision, but it is possible. If PennEast fails, it may, or may not, petition the Supreme Court to take the case. HALT will keep you informed as these appeals proceed.
About two weeks after the Third Circuit’s decision was issued, New Jersey asked the U.S. Court of Appeals for the D.C. Circuit to put the six petitions (including HALT’s) against FERC on hold until all of the appeals of the Third Circuit decision have been completed. The court agreed so it cancelled the October 4, 2019 oral arguments. HALT wanted the case to move forward because only the D.C. Circuit can void the certificate FERC granted to PennEast. We will have to wait for however long it takes for the court to decide if FERC violated homeowner due process rights. Meanwhile, PennEast holds an easement on direclty impacted land.
October 10, 2019, NJDEP denied PennEast’s application for a water quality permit which is good news. PennEast may file a new application if it wins its appeal or somehow finds a route that does not cross state land (which we understand to be unlikely). The state action put another crimp in PennEast’s plans.
What can HALT members do now?
While legal proceedings continue, homeowners are advised to create and/or maintain updated records and data on their properties. This includes information on: location of wells, septic systems, creeks and wetlands; water quality test results; historical features, endangered species and more. This may be needed if PennEast ever files a new application to NJDEP.
SPECIAL HALT MEMBER GATHERING TO GIVE THANKS.
The next HALT member meeting will be Wednesday, November 20 at 6:30 pm (not our usual 7:30 pm time). This meeting will be a potluck dinner where we “Give Thanks”. With Thanksgiving the following week, it is an appropriate time to express our gratitude to one another for our long-standing efforts and to take stock of how far we’ve come!
Details to follow….
NJDEP Denied PennEast’s Submitted Application–Oct 11th 2019
Tell NJDEP to Reject PennEast Now!–September 18th 2019
Putting Together Our Game Plan — August 29th 2019
PennEast Application Resubmitted to NJDEP — August 12th 2019
Meeting Highlights — June 19th 2019
Governor Murphy & NJDEP Deny Permits To Build Contested Pipeline — June 8th 2019
More Uncertainty for PennEast and FERC — March 20th 2019
HALT Says FERC Lacks Jurisdiction to Amend PennEast’s Application; Pipeline Cannot Be Built Without an Act of Congress — March 18th 2019
Please Intervene By March 8, 2019 — February 24th, 2019
Homeowners Claim PennEast Official has Major Conflict of Interest — February 21st 2019
HALT Letter to Attorney General & Hunterdon Freeholders Support — February 2019
Homeowner Update From Judge — January 17th 2019
PennEast Discussions With Lawyers — January 16th 2019
Court Order Entered — January 11th 2019
Surveying — January 5th 2019
Keeping directly impacted homeowners informed — February 7th 2018
FERC May Have Rubber Stamped PennEast’s Application – But The Real Fight Has Just Begun! — January 19th 2018
Confirmed the nominations of FERC Commissioners McIntyre and Glick — November 3rd 2018
HALT & Homeowner’s Legal Actions — 2017
FERC Nominees Are Confirmed — August 3rd 2017
NJDEP Denies PennEast’s Request for a Permit Application Extension! — 2017