Homeowners Challenging FERC’s Approval of PennEast Pipeline

Stockton, NJ (December 27, 2018) ­– Homeowners Against Land Taking (HALT-PennEast), whose members include hundreds of directly impacted homeowners and thousands of their  neighbors, filed its brief in the United States Court of Appeals for the District of Columbia Circuit last Friday, challenging the validity of FERC’s certificate of public convenience and necessity. HALT argues that FERC violated the Natural Gas Act and the Due Process Clause of the Fifth Amendment of the U.S. Constitution by failing to wait for decisions by other agencies that have the authority to block the construction of the project.

“FERC granted PennEast the right to take people’s land by ignoring the limitations that Congress and the Constitution have placed on its powers,” said Anne Marie Garti, the attorney representing HALT. “The Natural Gas Act says that eminent domain is for the construction of pipelines, but the New Jersey Department of Environmental Protection (NJDEP) has not yet decided whether this pipeline will get built. HALT is asking the D.C. Circuit to issue an order that says FERC violated the law by failing to wait for NJDEP’s decision.”

According to Vincent DiBianca, a directly impacted homeowner, HALT trustee, and the owner of a small farm and business on the pipeline’s proposed route in Hunterdon County, NJ, “Although some feel dominated by the influence of FERC and PennEast, our homeowner group along with our friends and neighbors are standing together for what we believe in. We see it as a victory of right over might.”

Adds Rosalind Westlake, HALT trustee and resident of Delaware Township, NJ, “Throughout this entire process, FERC has failed to acknowledge any of the facts and data provided by the public.  It has adopted wholesale the unsupported statements of PennEast and rubber-stamped the approval of PennEast’s application in direct contravention of our due process property rights granted by the US Constitution. We are eager to present our case to the US Court of Appeals.”

There are five other Petitioners challenging FERC’s decision. HALT joined the Delaware Riverkeeper Network, Hopewell Township, and the New Jersey Conservation Foundation / the Watershed in one brief, while the NJDEP and the NJ Division of Rate Council shared a separate brief. Each group focused on a distinct legal issue – together posing many significant challenges to FERC’s procedures.

Even though the pipeline may never be built, PennEast – owned by New Jersey Resources, South Jersey Industries and UGI – initiated over 180 eminent domain proceedings against homeowners and used FERC’s certificate to acquire court-ordered easements on their properties. In its brief, HALT asked the D.C. Circuit to void the certificate and nullify any easements that were granted as a result of its issuance.

HALT’s request for rehearing can be downloaded by clicking here:

http://elibrary.ferc.gov/idmws/file_list.asp?accession_num=20180220-5111

PennEast Pipeline Sued in New Jersey by Homeowners Collective for Trespassing, Nuisance

May 3, 2016

Flemington, NJ—New Jersey Homeowners today went on the offensive to protect their property rights by suing PennEast Pipeline Company, LLC (PennEast) for trespassing and nuisance. Homeowners Against Land Taking – PennEast Inc. (HALT PennEast), New Jersey Conservation Foundation, and seven of the many impacted homeowners filed a verified complaint in New Jersey Superior Court. Today’s action was taken in response to repeated acts of trespassing by PennEast in Hunterdon and Mercer Counties.

The groups’ filing includes clear and convincing evidence that PennEast has repeatedly and unlawfully entered onto the property of homeowners, landowners, and nonprofits in rural Hunterdon and Mercer Counties in a multiyear campaign of trespassing and nuisance that violates New Jersey law.

All acts took place in New Jersey and are governed entirely by state law. In New Jersey, the law is clear: entering someone else’s land without their consent is unlawful trespass.

To stop PennEast’s illegal conduct, plaintiffs have asked the court to protect their property rights—and the rights of others threatened by PennEast—by barring further trespassing and the use of any unlawfully obtained information. Stopping PennEast’s unlawful entries is essential, but so is preventing PennEast from utilizing the fruits of its past misconduct for its own benefit and to the detriment of landowners.

“We are doing what any landowner, anywhere would do, when faced with repeated invasions of their property rights, “said Jacqueline Evans, a founding member of HALT PennEast and a plaintiff. “Opinions on natural gas pipelines do not matter in this case. What matters here is that PennEast ignored landowner rights, our written direction not to enter private property and our express denials of permission to survey.”

“We have documentation that PennEast surveyors trespassed on the Copper Creek Preserve in Kingwood Township, which we own along with other partners,” said Michele Byers, Executive Director of New Jersey Conservation Foundation.  “It is our mission and responsibility to protect these lands and natural resources for the public, and we are taking this action to prevent future trespassing and damage on preserved lands by PennEast.”

“Over the past year and a half, we have lived with continuous anxiety from PennEast surveyors sneaking or just blatantly walking onto our property,” said plaintiff T.C. Buchanan.  “I would leave my home and get calls from neighbors that they were back.  All this has happened, while PennEast continues to broadcast their outright false claims that they are working with homeowners.”

“As a homeowner group, HALT is taking PennEast to court to protect our properties and our fundamental property rights against PennEast’s consistent, unlawful and inappropriate actions of trespassing and harassment of our homes, farms and land,” said Vince DiBianca, Trustee on the HALT PennEast Board. “This is a critical step in a comprehensive case we’re building with our allies to stop this unwanted, unneeded and harmful proposed pipeline.”

“Despite how PennEast acts, approval of this pipeline project is not a done deal and landowners retain their fundamental right to prevent unconsented entry,” said Laura Wilson, President of HALT PennEast. “Now we need a New Jersey court to stop PennEast’s outrageous, lawless conduct.”

In fact, PennEast has admitted violating the law. Too frequently, and for too long, PennEast has ignored landowner direction and taken what it wanted.

PennEast’s actions show a pattern of abusing landowners’ rights. Without legal action, the nearly 70% of New Jersey landowners who have denied PennEast permission to access their land remain at risk of further acts of trespassing by PennEast. Unless stopped by a New Jersey court, PennEast will continue to break New Jersey laws as it seeks to unlawfully bolster its Application for a Certificate of Public Convenience and Necessity under Section 7 of the Natural Gas Act from the Federal Energy Regulatory Commission (FERC). PennEast cannot shortcut state law and local property rights in an attempt to fast-track its incomplete application.

Steven Richardson, a partner in Wiley Rein LLP’s Environment & Safety Practice in Washington, represents HALT PennEast —a fast-growing nonprofit organization comprised of more than 300 homeowners in New Jersey’s Hunterdon and Mercer counties whose homes, farms, and livelihoods are directly threatened by PennEast’s proposed pipeline route. HALT PennEast is expanding into Pennsylvania to include many of the more than 800 homeowners directly impacted in Luzerne, Northampton, Carbon, and Bucks counties.

Mr. Richardson said: “FERC has not and cannot authorize PennEast to access private lands for civil surveys. In fact, FERC directed PennEast to only survey lands where permissions could be voluntarily obtained from landowners. In the face of federal, state, and industry directives requiring landowner consent as its only option, PennEast simply ignored whether it had consent and entered lands when it wished to do so.

“PennEast has incentives to enter property for surveys, even without consent; the surveys are a prerequisite to approval of its Application for an interstate natural gas pipeline that will put money in PennEast’s pockets. On Friday, April 29th, FERC issued another direction to PennEast to submit “complete” information to it within 15 days.  This underscores the timeliness of the trespass relief the landowners need to prevent PennEast stepping up its unlawful campaign.

“New Jersey homeowners are organized, know their property rights, and are taking legal action now because the past trespasses have harmed landowners and the threat of additional trespasses is growing as PennEast approaches the deadline to finish conducting surveys.

“The harm is not limited to the representative parties in the lawsuit. It also includes the hundreds of other New Jersey and Pennsylvania landowners in the pipeline pathway, many of whom are members of HALT PennEast.  PennEast’s surveyors have trespassed without consent, and the reality is that PennEast orders surveys, controls where they are done, and benefits from any information obtained. Plaintiffs’ complaint asks the court to make PennEast take responsibility for its trespasses and to stop PennEast’s pattern of trespassing permanently.”


The goal is simple, and it’s right there in the name: to HALT PennEast. Not reroute it, not change it, but to stop it cold. HALT PennEast is not here to negotiate. We are here to fight.

Please visit our website haltpenneast.org    to find out how to contribute and join our rapidly growing membership. Contribute today and be a part of the HALT PennEast strategy to stop this project.

For additional information, please contact HALT PennEast: Info@HALT PennEast.com

Conference Call Between FERC, Tetra Tech and PennEast

Posted to the Docket April 22, 2016, by Wiley Rein on behalf of HALT:

RE: PennEast Pipeline Company, LLC, Docket No. CPI5-558-000

April 20, 2016 Conference Call Between FERC, Tetra Tech and PennEast

Dear Ms. Bose:

On April 21, 2016, FERC submitted to Docket No, CPI5-558-000 the Meeting Minutes of a conference call between representatives of PennEast Pipeline Company, LLC (PennEast), Tetra Tech, and the Federal Energy Regulatory Commission (FERC) that took place April 20, 2016. The one-page summary of the call does not disclose the real substance of the call or provide adequate information regarding the details of the conversation between PennEast and FERC. Specifically, the summary states that one item discussed were “inconsistencies in text and tables” and another was “some instances of environmental information missing for the new route modifications.” These statements are too vague to inform intervenors about the specific aspects of PennEast’ s application that were discussed during the call.

The so-called “Meeting Minutes” fail to state or explain why FERC staff violated its own rule barring off-the-record or ex parte communications with an applicant, Rule 2201, 18 CFR  385.2201- Rules governing off-the-record communications; or, in the alternative whether this ex parte communication was covered by one of several narrow exceptions in Rule 2201 Paragraph (e). And, even if an exception to ex parte communications bar is relevant, the Meeting Minutes do not adequately demonstrate whether FERC staff complied with Paragraph that requires any document obtained during an ex parte communication be promptly submitted to the Secretary and placed in the decisional record of the relevant Commission proceeding.

Based on FERC’s April 21, 2016 filing, it appears that FERC staff may have violated the ex parte prohibition of the Administrative Procedure Act, section 557(d)(1), which also requires that agency proceedings, such as review of a Section 7 Application for a Certificate of Public Necessity and Convenience, be determined on the record after opportunity for an agency hearing. When communications prohibited by the AP A occur, the agency must place on the record “memoranda stating the substance of all such oral communications.” 5 U.S.c. 557(d)(I). The Meeting Minutes FERC filed is not a memorandum and only vaguely addresses the substance of the communications.

HALT – PennEast (HALT) is a non-profit organization comprised of over seventy homeowners in Hunterdon and Mercer Counties in New Jersey who would be affected by PennEast’s proposed pipeline route. HALT and many of its members have intervened in the FERC proceeding for PennEast’s application. HALT is uniquely qualified to discuss the environmental, historical, cultural, and economic impacts the pipeline will have because its members reside in the impacted area. In addition, HALT is qualified to verify the accuracy of PennEast’s information regarding milepost locations and acreages, which the Meeting Minutes stated were inconsistent in PennEast’s filings, because HALT’s members own the parcels for which PennEast is providing the incorrect information. Without more details regarding the specific problems raised during the conference call, HALT is incapable of knowing whether FERC addressed any or all of the inaccuracies that HALT itself has found in PennEast’s filings, which deprives HALT of its ability to fully participate in the FERC proceedings, ensure the accuracy of information provided by PennEast, and protect the interests of its members as impacted landowners.

HALT therefore requests FERC disclose the following additional information regarding the April 20 conference call to HALT and place the information on the Record for CP15-558-000:

  1. All notes regarding the specific omissions and inconsistencies in PennEast’s data responses that gave rise to call.
  2. For the attorney present on the call, Tamara Brown, Esq., please provide the name of her firm, whether she is an attorney of record in CP15-558-000, whether she is licensed to practice law in any State.
  3. Provide the names of any other FERC staff or attorneys who participated in or listened into the call.
  4. Provide all documents exchanged before or after the call.

If you have any questions about this request, please email or call me. Thank you in advance for your assistance.

Steven Richardson
Counsel for HALT-PennEast

 

To see the document on FERC, please go HERE