More Uncertainty for PennEast and FERC

 Some good news! The Third Circuit Court of Appeals granted the State of New Jersey a partial stay, and expedited its appeal. This poses yet another problem for PennEast.

The State had asked the Court of Appeals to “stay” the cases where the State is a defendant until a decision was made. The Court of Appeals ruled that surveys and testing can proceed, but no construction is permitted pending the Court’s decision – this relates to state-owner properties, only. The order states — “…physical construction of the pipeline shall be stayed pending this appeal. Additionally, the just compensation portion of the litigation is stayed pending this appeal.”

Although this relates only to the 40-some state-owned properties on the route it aids all homeowners. While surveys and testing can continue, this partial stay will hamper PennEast from moving forward at full speed.  It also provides more reason for FERC to delay decisions because the route and outcome of the stay are unknown.

This court decision, along with the question of PennEast’s permissibility to cross the Appalachian Trail without congressional approval (reported in the most recent HALT newsletter), raises uncertainty for PennEast and FERC.

HALT Member Meeting Next Week

HALT Says FERC Lacks Jurisdiction to Amend PennEast’s Application; Pipeline Cannot Be Built Without an Act of Congress — March 18th 2019

HALT’s lawyer has sent a letter to FERC regarding PennEast’s request to amend its Certificate by altering the route in PA.
http://elibrary.FERC.gov/idmws/file_list.asp?accession_num=20190308-5200

It appears that Congress must pass legislation in order for a gas pipeline to cross the Appalachian National Scenic Trail (“Appalachian Trail”), which is under the jurisdiction of the National Park Service. In its Application to Amend its Certificate, PennEast filed a route change affecting where the proposed pipeline would cross the Appalachian Trail in Pennsylvania. In its comment, HALT referred to the recent 4th Circuit Court decision that blocked the Atlantic Coast Pipeline from crossing the Appalachian Trail, even though the pipeline was going to be bored deep below the surface so that trees would not be cut.

In light of these legal developments, this makes crossing the Appalachian Trial by PennEast a national issue. It appears that FERC, the National Park Service, and state agencies cannot make this decision. It’s up to Congress to decide.

In addition, HALT states that the PennEast’s Application to Amend its Certificate cannot be granted by July 1, 2019, as PennEast requested. This is because HALT filed a petition for review in 2018 that challenges the validity of the certificate FERC issued to PennEast. Under the Natural Gas Act, the D.C. Circuit has to issue an order before FERC can amend PennEast’s certificate.

However, even if FERC prevails in court, the pipeline cannot be constructed unless Congress explicitly grants permission to PennEast for its pipeline to cross the Appalachian Trail.