Monthly Archives: May 2018

Penn East Pipeline

The Penn East pipeline across northern Pennsylvania and northern New Jersey continues with FERC approval and multiple eminent domain challenges. Recently another challenge was added via a New Jersey request that FERC reconsider the pipeline impact. Although unlikely, the effort could derail the pipeline in both states.

New Jersey asks appeals court to review FERC’s approval of PennEast pipeline

FERC erred in awarding Public Convenience and Necessity certificate, AG says

One of the first acts of Gurbir Grewal when he became New Jersey’s attorney general was to ask the Federal Energy Regulatory Commission to rehear its decision to certify a crucial aspect of the controversial PennEast pipeline; the proposed pipeline would carry natural gas from Pennsylvania to Mercer County. Monday, Grewal filed a petition with a federal appeals court that challenges FERC on that certification.

Grewal filed a petition yesterday with the District of Columbia Circuit Court, asking it to hear the state’s arguments that the Federal Energy Regulatory Commission (FERC) erred when it issued a Certificate of Public Convenience and Necessity to the pipeline project in January.

In February, Grewal asked FERC to stay the certificate and rehear the case, in a motion that was seen as a precursor to the legal challenge that it has now made.

FERC responded to the rehearing request with a “tolling order,” a mechanism that in theory gives it more time to consider the request but which in practice means that the agency takes no action for about six months and then summarily dismisses the request, critics say.

Other groups seeking a rehearing include three New Jersey municipalities, three New Jersey state lawmakers, a Pennsylvania township, and activist groups in both states. If constructed, the $1 billion pipeline would carry natural gas about 120 miles from Luzerne County, Pa. to Mercer County, NJ.

NJ says FERC doesn’t have authority

In the latest motion, New Jersey argued that FERC does not have the authority to issue a tolling order when a rehearing request is combined with any other request such as a stay.

The state argues that FERC was wrong to give PennEast the certificate that has allowed it to file eminent domain suits against some 150 New Jersey landowners who have refused its offers of compensation for building the pipeline on their land.

The state has also declined the company’s offers of compensation for easements on several parcels of state-protected land in Hunterdon County, totaling about 1,300 acres.

Since many landowners have denied the company access to their land to survey for the pipeline, the company lacks knowledge about environmental impacts on about two-thirds of the route, the state said in its motion to FERC in February. Even so, FERC’s certificate allows condemnation — the process by which land is taken via eminent domain — for all the route, the motion said.

“Enabling PennEast to condemn perpetual easements before knowing whether the route must be shifted to avoid environmental impacts undoes the preserved nature of the land even if the pipeline will ultimately never cross that land due to route changes,” the state said in February.

‘Arbitrary and capricious’

In the new petition, the state calls FERC’s certificate “arbitrary and capricious” because it lacked environmental information, improperly relied on PennEast’s contracts with its affiliates to demonstrate public need for the line and tried to minimize or avoid environmental impacts rather than mitigating them, as required under federal law.

The motion is a rare or perhaps unprecedented example of a state challenging FERC on its certificate of approval in a pipeline case, said Jennifer Danis, an attorney who represents the New Jersey Conservation Foundation, a leading opponent of the pipeline. “I don’t know of another state that has taken a broad legal challenge at a FERC certificate in a pipeline case,” Danis said.

FERC is likely to respond by asking the court to dismiss the petition, and the real question is whether the court agrees to hear the case on the merits, Danis said.

Tom Gilbert, campaign director for the NJCF, said the motion challenges FERC’s “flawed” process and its findings. “PennEast never should have been approved in the first place,” he said in a statement.

FERC spokewoman Tamara Young-Allen said the agency can’t comment on matters that are subject to a final commission order.

PennEast spokeswoman Pat Kornick said FERC’s approval of the project is consistent with the agency’s longstanding policies and that the company is confident that the courts will uphold the review process. The company says it expects to begin construction this year and for the pipeline to start operating in 2019.

In a separate case, a federal judge in Trenton is expected to rule shortly on whether PennEast can use eminent domain to take land from about 130 landowners along the New Jersey portion of the pipeline route.

FERC’s approval of PennEast was a blow to opponents but the project still needs permits from a number of agencies including the New Jersey Department of Environmental Protection and the Delaware River Basin Commission.

Written by: John Hurdle | StateImpact Pennsylvania

Photo caption: Part of the proposed PennEast pipeline could run through this stretch of land in Bucks County, Pa. New Jersey has taken a stronger position toward the pipeline. The Attorney General’s office has filed a federal appeals case to try to halt construction while Pennsylvania has approved water crossing permits.

By |May 31st, 2018|Categories: Uncategorized|

Clean Air Council v Sunoco Pipeline

An April 30, 2018  decision of the Pennsylvania Commonwealth Court rejected six of seven claims against Sunoco re environmental harms and eminent domain overreach. One claim, based on the Environmental Rights Amendment, was directed to further consideration by the Commonwealth Court.

Read the Pennsylvania Commonwealth Court decision here.

By |May 31st, 2018|Categories: Condemnation, Eminent domain, Pipeline Construction, Property Rights|

Boy Scout Award

Mike Faherty was provided the “Ideal Scout” award by the Lancaster Council of Boy Scouts. Mike an Eagle Scout and former Boy Scout employee, provided pro bono services to the Scouts when a scout camp was threatened by eminent domain. Mike was able to decrease the land acquired and increase compensation.

By |May 29th, 2018|Categories: Condemnation, In the News, Property Rights|

$5,000,000 Increase From Turnpike

The Pennsylvania Turnpike Commission condemned 70.9 acres through a 240 acre sportsman’s club. The Turnpike paid $1,750,000 for property damages and no funds for relocation damages. Faherty Law Firm provided representation and obtained a settelement  for an additional $5,000,000 in total damages.

Turnpike buys gun club land near near McDonald for $5 million

The Pennsylvania Turnpike Commission has acquired a key piece of property to allow the construction of an interchange on the Southern Beltway — and protect the safety of motorists.

But it came at a hefty price: $5 million.

That’s the amount the commission agreed to pay last week to buy 70.9 acres of land from the McDonald Sportsmen’s Association, leaving the association 168.4 acres of property off of Cooks Road between McDonald and Midway, Washington County.

The commission needs the land to build interchange 11 on the $800 million, 13-mile toll road that will link Route 22 to Interstate 79 on the Allegheny-Washington County border. That interchange will be on the northeast corner of land formerly owned by the association and will include construction of access roads from Route 980 to the north and Noblestown Road to the south.

Jeanmarie McLaughlin, the commission’s assistant counsel, said the property was among the last and most expensive pieces of land the commission has had to acquire for the project. Several factors besides the amount of property were at play in the cost, she said, among them activities the association conducts on that part of the property and the need to protect motorists who will use the new highway from activities on the shooting ranges at the association.

“The settlement amount includes more than the price of the land,” Ms. McLaughlin said. “In order for us to get them back to whole, we needed to pay for the activities they lost as a result of taking the land.”

Ms. McLaughlin said it was “a challenge” to reach an agreement that provided the land the turnpike needed, allowed the association to continue its programs and protect motorists.

“We’re not taking any of their buildings, but we are impacting their ranges,” she said. “They were very involved from the beginning to make sure they could continue their activities. That was especially important that them continuing their activities would continue to be safe for everybody.”

The association offers a variety of shooting ranges and training programs, including nighttime skeet shooting, but it isn’t clear which activities occur on the land acquired by the turnpike commission. Association President Bernie Dhans referred questions about the sale and changes the club will have to make to Harrisburg attorney Mike Faherty, who declined comment.

With this purchase, the commission has purchased just over 300 properties for the Southern Beltway at a cost of about $68 million.

Parts of the highway are under construction but none of it will open until all of it is complete in early 2021.

Written by: Ed Blazina | Pittsburgh Post-Gazette

By |May 10th, 2018|Categories: Condemnation, In the News, Transportation|