JAN. REPORT TO CARBON COUNTY STAKEHOLDERS
By SAVE CARBON COUNTY
PennEast/UGI Pipeline Project- Prepared 1/28/2020
As noted in last month’s report, PennEast Pipeline has asked FERC (Federal Energy Regulatory Commission) for an extension of two more years in which to get the project operational. FERC has not yet scheduled a hearing on the extension request. The company filed its last-minute request on Dec. 30th. The certificate was to end on 1/19/2020.
PennEast has also asked FERC to weigh in on a legal dispute with the State of New Jersey regarding using Eminent Domain. PennEast has lost a federal legal battle to seize the New Jersey land it needs to build the pipeline, stalling the project. But the company intends to appeal to the Supreme Court and has asked FERC for a declaratory order where the commission would state that PennEast should be able to use federal eminent domain powers even to seize state-owned lands. Some observers think FERC is unlikely to grant PennEast’s request because it could have filed briefs in the earlier legal battles if it supported the company’s position. FERC was originally scheduled to make a decision on the 23rd but has moved the hearing to the 30th.
PennEast intends to file its petition to the Supreme Court on February 3rd. Legal observers say that the odds of the Supreme Court taking up the case are slim. The Court only takes about 1% of the cases it receives and there is strong precedent upholding a state’s immunity from suits by private parties. Until the petition is filed, we will not know the basis for the company’s appeal.
While homeowners in Carbon County are battling PennEast, homeowners in Delaware County are dealing with the impact of the Mariner East 2 pipeline. This pipeline is proposed to carry volatile natural gas liquids from Ohio to an export facility in Delaware County. The pipeline construction has contaminated surface and groundwater sources by hundreds of drilling mud spills, created sinkholes in parks and backyards and ruined wells for dozens of homeowners. Some homeowners have not had potable water for over six months. The company denies responsibility for any of the well contamination. The DEP has shut down the project for a month and issued fines of $12.6 million. The FBI is investigating the Wolf administration’s handling of the permit process for this pipeline.
Save Carbon County is a member of a regional and two-state effort to stop the PennEast/UGI pipeline. Local information can be found on FaceBook at “Stop the Fracking Pipeline.” Regional Information can be found on FaceBook at
“Stop PennEast Pipeline.”
JANUARY 29 MEMBER MEETING CANCELLED
Back in January 2018 PennEast was given until January 19, 2020 to finish the proposed project and place it into service. As you know, after solid opposition these two years have expired and no pipeline is in place. This is great news!
On December 30, 2019 PennEast, citing regulatory hurdles that still remain in New Jersey and Pennsylvania, filed a request with the Federal Regulatory Commission (FERC) asking for a two-year extension. FERC regularly rubber stamps such requests and an extension for PennEast is expected. Nonetheless, on January 6, Columbia Morningside Legal Services Inc. sent a letter to FERC on behalf of New Jersey Conservation Foundation, The Watershed Institute and the Delaware Riverkeeper Network opposing PennEast’s baseless request for an extension of time. Link to letter: https://elibrary.ferc.gov/idmws/common/OpenNat.asp?fileID=15436984 .
Also, see attached article in NJSPOTLIGHT containing comments from Tim Duggan on this subject https://www.njspotlight.com/2020/01/penneast-way-behind-schedule-asks-for-two-more-years-to-build-pipeline/?fbclid=IwAR2PrMyC7TzghHwEDL8onlJrqLBCvdJdkAyKbLTUv-OBcfMXMeLxNuJ-lFE
As you know, PennEast has requested that the U.S. Supreme Court review the decision of the U.S. Court of Appeals for the Third Circuit stating that PennEast could not take the State of New Jersey into court to take possession of state land for private development. It remains unclear as to whether the Supreme Court will choose to hear this case. At the same time, PennEast cannot resubmit its failed applications to the NJDEP until the U.S. Supreme Court ruling is complete. The DRBC is reviewing PennEast’s application but has not schedule required public hearings.
Since there is little else to report, HALT is cancelling the January 29 meeting at the Prallsville Mills. As of now, we will retain the February 26 scheduled meeting.
In the meantime, HALT will remain attentive and vigilant in its opposition. We ask homeowners and citizens to do the same. Our intention over the ensuing months is to pay attention to developments in the courts including decisions on related cases. Our neighbors in Pennsylvania will keep their focus on preventing PennEast from cutting trees and inflicting other damage before any construction begins.
We will continue to keep you abreast of any events as they unfold. May 2020 bring us more good news!
DEC. REPORT TO CARBON COUNTY STAKEHOLDERS
By SAVE CARBON COUNTY
PennEast/UGI Pipeline Project- Prepared 12/31/2019
Note that PennEast has asked for a two-year extension from FERC. This is an admission of their failure to complete the project on schedule. Thanks to everyone who has worked to make this happen and have a great new year.
Today the PennEast Pipeline asked FERC (Federal Energy Regulatory Commission) for an “extension of time.” On January 19, 2018, the FERC issued an order authorizing PennEast to construct, own and operate the proposed PennEast Pipeline. Under that order, the project was to be operational by January 19, 2020. Oops. PennEast is asking for an extension until January 19, 2022. Coincidentally, the 2022 date is consistent with the timeline we published last month which was a “best case” estimate for the pipeline.
If they manage to complete the pipeline by 2022, it will be five years behind schedule.
About a year ago, an accident at a gas well in Ohio caused a blowout of methane into the air. The leak went on for 20 days. This accident got very little press but a new study conducted using satellite imaging and published in December shows that the accident released 60,000 tons of methane, which is more methane than is released in an entire year in all European countries except the UK, Germany and Italy. Leaked unburned methane is 80 times more harmful in terms of climate change than burning coal.
Energywire, an oil and gas industry publication, listed the PennEast petition to the Supreme Court as one of eight important energy battles to watch in 2020. The report concludes that.” …the odds are stacked against PennEast. The Supreme Court only agrees to hear 1% of the cases it receives.”
The Atlantic Sunrise Pipeline is another of the eight energy battles listed by Energywire. Earlier this month, the U.S. Court of Appeals for the Dist. of Columbia took the rare step of agreeing to rehear a case concerning FERC’s use of “tolling orders” which effectively allows pipeline projects to move forward while denying landowners a hearing before the commission. A hearing before the commission is required before a plaintiff can bring a lawsuit. The tolling order prevents landowners from having their day in court before the pipeline is built. If the appeals court overturns the precedent in the case, the rights of landowners to due process would be affirmed and strengthened. There is a similar case against PennEast concerning the use of tolling orders and due process for landowners.
Save Carbon County is a member of a regional and two-state effort to stop the PennEast/UGI pipeline. Local information can be found on FaceBook at “Stop the Fracking Pipeline.” Regional Information can be found on FaceBook at “Stop PennEast Pipeline.”
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!
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….