Summary of HALT’s February 26, 2020 Meeting
There have been some positive developments in the fight against the PennEast pipeline and there are a number of key court cases and amendments requested by PennEast that create suspense and require our continued vigilance.
Anne Marie Garti, the attorney engaged by HALT to contest FERC’s decision (which granted PennEast eminent domain rights) presented information on the upcoming cases and answered member questions.
First the good news!
Last September, the U.S. Court of Appeals for the 3rd Circuit decided that NJ has sovereign immunity, which means PennEast cannot sue the state to take its land. This effectively blocked PennEast from moving forward in NJ as its proposed route includes about 40 parcels of state-owned land.
This month, the Constitution pipeline, which was approved by FERC in 2014 to cross PA and NY, was abandoned by the pipeline company. This was in large part due to the strategies and legal arguments developed by Anne Marie. For all of us new to fighting pipelines, this is incredibly encouraging news. These fights can be won.
Nine of the towns along the proposed NJ route of the PennEast pipeline have joined the Hunterdon Area Energy Coop to reduce the residents’ cost of electricity and to increase the percentage of renewables in our electricity, thus reducing the percentage of natural gas. This has the potential to take over $1 million out of the pockets of the PennEast investors next year.
Second, the pending court cases and requested changes to the Certificate!
PennEast is trying to appeal the 3rd Circuit Court’s decision to the Supreme Court. If the Supreme Court decides not to hear the case, it is unlikely that the PennEast pipeline can be rerouted around state owned land in NJ. If the Supreme Court takes the case, a decision is not likely until the winter of 2020-21. Even though PennEast has hired a very high-profile lawyer who recently presented his 100th case before the Supreme Court, NJ’s Attorney General, who won the case in the 3rdCircuit, has a great track record of very effective advocacy.
FERC supported PennEast’s request for a Supreme Court hearing. There have been many organizations, including EDF, Delaware Riverkeeper, and others, who submitted briefs supporting NJ.
PennEast asked FERC for a two-year extension to construct the pipeline and FERC, as expected, granted the request.
On January 30, 2020, PennEast asked FERC to amend its Certificate of Public Convenience and Necessity (Certificate) so it can build the project in two phases. The first phase would be entirely in PA and PennEast wants FERC to approve this request by October 2020. While clever, Anne Marie suggests that it’s probably illegal to amend the original Certificate in this manner and that PennEast should apply for a new one. Nonetheless, given FERC’s history of granting pipeline developers whatever they want, FERC may overlook this interpretation of the law. HALT members can intervene with FERC through 5 pm on Wednesday, March 4, 2020.
The ugly truth is that as long as FERC has a majority of former and future fossil fuel lobbyists running it, landowners will not get a fair hearing from FERC. However, we will continue to stand united with the NJDEP and the NJ Attorney General. We should remain hopeful because there is now hard proof that pipelines like this can be defeated! We will persevere!