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

UPDATE:

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:

Legal Updates

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.

Regulatory Update

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….

October 2019 Report To Stakeholders

OCT. REPORT TO CARBON COUNTY STAKEHOLDERS

By SAVE CARBON COUNTY

PennEast/UGI Pipeline Project- Prepared 11/1/2019

Yesterday, the Keystone pipeline leaked an estimated 383,000 gallons (9,120 barrels) of oil into wetlands in North Dakota. The leak is already the eighth-largest pipeline oil spill of the last decade. The tar sands oil transported through the Keystone pipeline is particularly hard to clean up because, unlike crude oil, it sinks in water.  There is little difference between an oil pipeline under pressure and a gas pipeline—except the leaked gas explodes.

New data reveals that damaging air pollution has increased nationwide since 2016, reversing a decades-long trend toward cleaner air.  An analysis published this week by researchers at Carnegie Mellon University found that fine particulate pollution increased 5.5 percent on average across the country.  The research identified recent increases in driving and the burning of natural gas as likely contributors to the uptick. Particulate pollution has been linked to a range of health problems including asthma, lung cancer, heart attack and stroke.

As reported last month, on Sept. 10th, the 3rd District Appeals Court upheld the State of New Jersey’s appeal.  The Court ruled that PennEast, as a private company, cannot use the power of Eminent Domain to take easements owned in whole or in part by the State of New Jersey because the state has sovereignty rights guaranteed in the Constitution.

During the hearings, PennEast was asked if a federal agency such as FERC could bring Eminent Domain proceedings on their behalf.  PennEast answered, “No” because the Natural Gas Act (NGA) only allows the “certificate holder” which is PennEast to assume the power of Eminent Domain.  Not withstanding their answer, PennEast is now asking FERC to make an emergency interpretation of the NGA that would allow FERC to proceed against New Jersey on behalf of the pipeline company.  Obviously, this is an attempt to work around the Court’s ruling but their own answers, on the record, should work against them. 

Save Carbon County held their fourth annual Pipeline Blowout on Sunday the 27th.  Approximately 45 impacted landowners and supporters attended a lunch and basket auction at the Big Creek Grange.  Speakers at the event were Eve Miari of the Clean Air Council and Margaret Shinsec, a local impacted landowner. The event was a great way to lift spirits after our fourth year of fighting 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.”

Sept 2019 Report To Stakeholders

SEPT. REPORT TO CARBON COUNTY STAKEHOLDERS

By SAVE CARBON COUNTY

PennEast/UGI Pipeline Project- Prepared 9/29/2019

The big news:  On September 10th, a three-judge panel of the 3rd District Appeals Court, overturned an earlier ruling and upheld the State of New Jersey’s appeal.  New Jersey had argued that PennEast, as a private company, did not have the right to use Eminent Domain to take easements across state-owned or state-conserved properties.  New Jersey argued that under the Constitution, the State has sovereign rights that cannot be usurped by a private company.  If the ruling stands, it means that PennEast will not be able to cross approximately 75 state owned or conserved properties.  This leaves PennEast with some difficult choices: (1) major rerouting of the project around these properties with the huge delays that would be involved or (2) appeal to the Supreme Court which takes less than 3% of the cases presented.  The ruling by the District Court is in line with another recent ruling in favor of the State of Maryland versus a pipeline company seeking to take easements from state properties.  Since this ruling was by a three-judge panel of the Court, the first move for PennEast will probably be to ask for all nine judges of the Court to consider the case.  I am told that it is very likely the Court will agree to a full-panel hearing.

In the meantime, all of the impacted landowners and pipeline fighters are enjoying the win.

Last month PennEast resubmitted their application to NJDEP.  This month, it was again rejected by NJDEP for a lack of information. 

The Fourth Annual Pipeline Blowout, hosted by Roy and Linda Christman, is scheduled for October 27th at the Big Creek Grange near Beltzville State Park.  The party will begin at 1PM and end at 2:30PM.  There will be good food, drinks, desserts and a live bluegrass band to entertain.  We will also have a few speeches, a basket auction, and activities for the kids.  You are cordially invited.  The event is free.

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.”

NJDEP Denied PennEast’s Submitted Application–Oct 11th 2019

MORE GOOD NEWS!

October 11, 2019

Yesterday, the NJDEP denied PennEast’s recently submitted application citing the US Court of Appeals decision to vacate the orders of condemnation for forty-nine properties where the state of NJ has property ownership interests.

The letter states that the PennEast application cannot be deemed “administratively complete” because PennEast now lacks the authority to submit the application. It goes on to say, “Given this fundamental deficiency, the NJDEP hereby rejects and administratively closes the Application”. “The application is denied without prejudice and as a result, no application for a Freshwater Wetlands Individual Permit and Water Quality Certificate is currently pending in any form before the NJDEP”. Finally, the letter states, “The Department shall take no further action on this application.”

This decision means that this application cannot be resubmitted without PennEast having legal authority to these 49 properties. This is great news for homeowners and we applaud the NJDEP for its diligent and swift decision.

We are aware that the battle to halt this pipeline will likely continue. PennEast may attempt to overturn the Court’s decision by requesting an “en banc” rehearing with the Third Circuit (which is a request for a full panel rehearing and reconsideration of the decision made by the 3 judge panel). These requests are sometimes granted under special circumstances. In due time, PennEast may also petition the Supreme Court to hear this case. They may try to litigate in state court. PennEast has already contacted FERC in an attempt to enlist the support of FERC with their legal dilemma. Who knows what PennEast will try next?

All that said, impacted homeowners, their neighbors and allies have never been in a stronger position! And, we are not going away. We will keep you apprised of developments.

Tell NJDEP to Reject PennEast Now!–September 18th 2019

Tell NJDEP to Reject PennEast Now!

Last week, a federal court ruled that PennEast Pipeline cannot seize NJ state-owned land to build its proposed pipeline including all of the preserved farmsinterspersed throughout their route.

This is a big blow to PennEast!

However, the fight is not yet over. Impacted homeowners, their friends and neighbors are requesting action by petitioning the New Jersey Department of Environmental Protection (NJDEP).

This Petition, already signed by over 4,300 New Jerseyans, tells NJDEP to reject PennEast’s pipeline permit outright because it cannot meet New Jersey’s strict environment requirements under the Clean Water Act. (NJDEP has issued a deficiency letter to PennEast stating that their application is “not administratively complete” however, the application can be resubmitted by PennEast.) 

You can help by taking one or more of these steps:

  • Sign the petition today, if you haven’t.
  • Have other members of your household sign the petition.
  • Forward this email to your friends, neighbors and others in NJ asking them to sign.
  • Copy and paste the following to your Facebook page: 
    Fact: New Jersey has more than enough pipelines to meet demand for natural gas. Fact: The PennEast pipeline threatens the drinking water of over a million New Jerseyans.  Stand up for facts: Urge the New Jersey Department of Environmental Protection to stop the PennEast pipeline once and for all: https://www.greenactions.org/stop-penneast?            sc=halt

SIGN PETITION NOW