About Michael Faherty

Attorney Michael F. Faherty leads Faherty Law Firm in the advocacy of property rights in providing eminent domain law services to Pennsylvania property owners. He provides legal representation to property owners. He provides legal representation to property owners in conjunction with his service as the only Pennsylvania representative to the Owners’ Counsel of America. The Owners’ Counsel is the national association of leading eminent domain attorneys and property rights advocates.

Further Challenge To PennEast Pipeline

The New Jersey Department of Environmental Protection had previously presented concerns with the environmental impacts of the proposed pipeline from northeastern Pennsylvania into New Jersey. Now, the Department has taken the more agressive step of asking the federal regulators of FERC to reconsider the FERC approval from last month. Traditionally federal and state regulators have been very supportive of pipeline development. This filing follows the recent trend of more active regulatory oversight.

NJDEP asks Feds to reconsider PennEast pipeline decision, setting up potential legal battle

The NJDEP has asked FERC to place a stay on eminent domain proceedings by the controversial pipeline company.

The New Jersey Department of Environmental Protection filed a request with federal regulators Friday, asking that they reconsider a key decision regarding the controversial PennEast pipeline. The move signals an escalation in the DEP’s opposition to the project and could set the table for a legal battle.

In January, the Federal Energy Regulatory Commission granted a certificate to PennEast that would allow the company to use eminent domain to access public and private lands to survey for the pipeline, and obtain the land if necessary for construction. The tool is essential for the PennEast Pipeline Co., which is seeking to build a 120-mile natural gas pipeline from northeast Pennsylvania to Mercer County. The company has been hamstrung by landowners along the proposed path who have denied it access, including the state of New Jersey.

The DEP has cited the lack of access in denying PennEast’s applications to the state, initiating a Catch-22 that suggested the agency opposed the project. But the agency’s request that the FERC hold a rehearing, and also stay the use of eminent domain until one can be held, shows it is taking a more active role in filing against the project.

In its filing, the DEP argued that the FERC incorrectly confused PennEast’s promises to “mitigate” environmental concerns, with legal requirements that pipelines avoid environmentally sensitive areas.

“Although the pipeline proposes to cross over 30 streams in New Jersey, NJDEP has not been provided with any site-specific stream crossings detailing how environmental impacts would be avoided or minimized,” the filing stated.

The state also argued that simply allowing surveyors to access land “undoes the preserved nature of the land, even if the pipeline will never ultimately cross that land due to route changes.” It also made the argument that the department would require up to a year to review any new application submitted by PennEast, and thus a stay would cause no harm to PennEast as the FERC considers the rehearing request.

The DEP also noted that it wasn’t the only entity requesting a rehearing: The pipeline’s docket showed at least 14 parties also filed rehearing requests this past week, including the New Jersey Sierra Club, Delaware Riverkeeper Network and New Jersey Natural Lands Trust.

In a phone interview, New Jersey Sierra Club Director Jeff Tittel said the filings set up a potential legal battle.

“If FERC doesn’t grant (the requests), you can then go to federal court to challenge the decision,” Tittel said.

Court records show PennEast has filed eminent domain proceedings against more than 180 noncompliant properties in New Jersey and Pennsylvania. The DEP’s rehearing request noted that PennEast had filed proceedings against 150 parcels in New Jersey.

Written by: Kyle Bagenstose | The Intelligencer

By |February 21st, 2018|Categories: Condemnation, Eminent domain, Pipeline Construction, Property Rights|

PennEast Pipeline – Eminent Domain Filed

A natural gas pipeline proposed for Luzerne County, Pennsylvania to Mercer County, New Jersey has been approved by FERC. The application still needs permits from the Delaware River Basin Commission and the New Jersey Department of Environmental Protection. The company has filed eminent domain documents. Property owners are encouraged to protect their property rights.

PennEast pipeline seeks eminent domain, plus U.S. marshals to protect workers

The PennEast Pipeline Co. filed eminent domain notices in federal court to obtain access to land owned by dozens of people in New Jersey and Pennsylvania who have refused its offers of compensation for building the proposed natural gas pipeline on their property.

Court documents were filed in both states on Tuesday, asking the courts to allow the company to immediately take possession of the rights of way where the pipeline would be built on individual properties.

The company also asked the court to approve the presence of federal marshals to “enforce the Court’s injunction” and to prevent landowners and their supporters from impeding construction.

The filing said that landowners and their supporters have indicated that they intend to block access and “harass and intimidate” PennEast employees and contractors who should be protected by marshals.

 Armed marshals

In March 2016, federal marshals armed with semi-automatic weapons were present during the cutting of several acres of maple trees on a property in Susquehanna County, Pa. to make way for the planned Constitution Pipeline that was later blocked by the state of New York.

The new filings say the company is authorized to “condemn” the rights of way by the certificate of public convenience and necessity for the project issued by the Federal Energy Regulatory Commission on January 19.

Pat Kornick, a spokeswoman for the company, said it has been trying to avoid legal action to obtain access to private land, but finally did so on Tuesday after being unable to agree to compensation terms with an unspecified number of landowners.

“While PennEast views legal proceedings as emotional, burdensome, and costly for all involved, it exercised that last-resort option February 6,” Kornick said in a statement. “The ability to access properties to confirm environmental data is required by the federal order.”

In the public interest

She said the action was justified by the FERC decision, which found the pipeline is in the public interest because of the benefits it will bring to millions of people who will have access to cheap natural gas. The company says the pipeline will be operational in 2019.

The company continues to work with landowners to agree to compensation, and has reached acquisition agreements with “more than half” the landowners along the 120-mile route from Luzerne County, Pa. to Mercer County, N.J., Kornick said.

Timothy Dugan, an attorney who represents about 30 New Jersey landowners who are fighting PennEast, said 49 had been sued by late afternoon Wednesday. He estimated that between 160 and 200 landowners across the route have refused to accept the company’s offers, but that the final number should become known on Thursday when the company continues its filings.

About two-thirds of New Jersey landowners refused any cooperation with PennEast until FERC issued its certificate, but some of those have now reached agreement because they didn’t want the expense of hiring a lawyer, Dugan said.

Some landowners shocked

PennEast’s action came after the expiration of the its own Feb. 5 deadline for landowners, both private and public, to agree to offers of compensation. But the filing still came as a shock to some landowners.

T.C. Buchanan, who owns 32 acres in Delaware Township near Stockton, has been fighting the company’s plan to create a right-of-way about a half-mile long and 100 feet wide on her farm.

She said PennEast offered $46,000 for the easement, which she said would make the farm “worthless.”

“When somebody is threatening to destroy something you have worked your entire life for, it’s so upsetting,” said Buchanan, 63, who has lived on the farm, and made her living from it, for 22 years.

She said she would not accept PennEast’s offer at any price. “This is what we worked our entire lives to have and we don’t intend to give it away,” she said.

Jacqueline Evans runs a certified organic farm on 6 1/2 acres near Stockton, where she lives with her three children, and where PennEast wants to build the pipeline. She said she would lose her organic certification and the pipeline would come “dangerously close” to her well.

Evans, 53, said PennEast appraised the proposed right of way at $11,900 but then offered her $49,300 on condition that she accept the offer within a week.

She refused, and says she won’t accept any amount of compensation. “This is wrong, and I’m not letting them put my children in an incineration zone,” she said.

Jeff Tittel, director of the New Jersey Sierra Club, urged landowners to hold out against PennEast despite the eminent domain orders.

“If homeowners give PennEast easement, they will lose their rights on a portion of their land. They are better off fighting them in court to delay them and limit their ability to just do survey work on their land,” Tittel said in a statement.

While the FERC certificate was a boost for the pipeline project, it must still obtain permits from the Delaware River Basin Commission and from New Jersey’s Department of Environmental Protection, which last week denied the company’s application for a wetlands permit, saying it had not supplied enough information.

The company says it will reapply, and argues that the pipeline will increase the supply of low-cost natural gas from Pennsylvania’s Marcellus Shale to consumers and utilities in the two states. Opponents including the New Jersey Rate Counsel, an advocate for utility ratepayers, say there is no need for the line.

Written by: Jon Hurdle | StateImpact PA
Photo caption: A landowner rips up an offer of compensation from PennEast at a rally February 2, 2018.

By |February 18th, 2018|Categories: Condemnation, Eminent domain, Pipeline Construction, Property Rights|

DEP Fine of Sunoco Pipeline

The Pennsylvania DEP ordered a January 3 halt to the Mariner East 2 pipeline construction following multiple permit violations. The DEP has now allowed a February 8 restart to construction following an agreement with Sunoco Pipeline with a fine of $12,600,000. The DEP will monitor further construction.

The delay has led Sunoco to offer the purchase of additional one year easements for ongoing construction/remediation work. Property owners are not obligated to agree. Faherty Law Firm is providing legal representation to owners approached by Sunoco Pipeline for additional property rights.

Sunoco fined $12M, but allowed to resume work on Pa. pipeline

Pennsylvania regulators are fining Sunoco more than $12 million for problems with a massive natural gas pipeline project, but letting work resume under a consent agreement.

The Department of Environmental Protection said Thursday that Sunoco Pipeline has made changes since work on the $2.5 billion Mariner East 2 pipeline was halted Jan. 3.
Rolfe Blume holds up bottles of water that he said came from his well after construction started on the Mariner East 2 pipeline.

The 350-mile project has been plagued by spills and leaks of drilling fluid and improper construction methods.

In stopping the work, the state agency said Sunoco demonstrated it couldn’t or wouldn’t comply with Pennsylvania’s clean streams law and other regulations.

The company didn’t immediately respond to messages seeking comment.

Among the violations reported across the state, the owners of private wells in Cumberland County near North Locust Point Road in Silver Spring Township reported cloudy water in December in areas where the DEP reported that Sunoco’s crews used a method of digging that wasn’t allowed under its permits.

More violations were reported in a wetland in Lower Swatara Township in Dauphin County and off of Shaeffer Run in Toboyne Township in Perry County.

‘It should have been stopped a long time ago:’ Pipeline opponent sees construction halting as small victory
Rolfe Blume of Upper Frankford Township has fought the Mariner East 2 pipeline, which cuts through his property on its way across the state. The DEP halted construction Wednesday over numerous violations.

The 20-inch pipeline will move natural gas liquid products from Marcellus Shale drilling fields in western Pennsylvania to a terminal in Philadelphia.

It’s scheduled for completion by summer.

Written by: Mark Scolforo | The Associated Press

By |February 15th, 2018|Categories: Condemnation, Eminent domain, Pipeline Construction, Property Rights|

Blume Stops Sunoco

Rolfe Blume of Upper Frankford Township near Carlisle, Pennsylvania operates a gun shop on his property and supports the 2nd Amendment right to bear arms. He also has vigorously fought for 5th Amendment property rights. His challenge to the Mariner East 2 pipeline as being for private enterprise, rather than for a public purpose, is pending before the Pennsylvania Supreme Court. Recently his multiple complaints to the Pennsylvania Department of Environmental Protection helped convince the Department to suspend the pipeline construction.

Man sees halt in pipeline construction as small victory

“They ruined my place, they ruined my life, they ruined everything. There is so much stuff they’re doing wrong, it’s a danger to people and property. It should have been stopped a long time ago.” – Rolfe Blume

Construction of the pipeline planned to ship liquid natural gas across the state has been put on hold over multiple violations, and that comes as no surprise to one Cumberland County man.

“I haven’t had water since June,” said Rolfe Blume of Upper Frankford Township.

Since the beginning of construction of the Mariner East 2 pipeline, which passes through his property, Blume said his well water has been infected with a yellow slime.

“I can’t cook, I can’t drink it. It’s a mess,” he said.

Though Blume’s farm was not listed on the Department of Environmental Protection’s order that temporarily halted construction of the pipeline, some Cumberland County homes have reported similar issues.

Rolfe Blume of Upper Frankford Township, above, is pleased to see construction halted on the Mariner East 2 pipeline. He said it has impacted his well and ruined his property. Pipeline construction stopped after a state Department of Environmental Protection order. Some of those violations were in Silver Spring Township, where pipe and construction equipment still sit, waiting to resume work.

The state DEP issued an order stopping construction of Sunoco Logistics’ pipeline.

“Until Sunoco can demonstrate that the permit conditions can and will be followed, DEP has no alternative but to suspend the permits,” DEP Secretary Patrick McDonnell said in a statement.

“We are living up to our promise to hold this project accountable to the strong protections in the permits,” he said.

Jeff Shields, the spokesman for Sunoco Logistics, now called Energy Transfer, released the following statement:

“We received an order this morning from the Pennsylvania Department of Environmental Protection that instructed us to suspend construction activities in Pennsylvania with respect to Mariner East 2 until reauthorized by the Pennsylvania DEP. The order requires us to submit various reports related to current and future construction activities. We intend to expeditiously submit these reports and we are confident that we will be reauthorized to commence work on this project promptly. We also reiterate our commitment to the highest levels of construction expertise and our dedication to preserving and protecting the environment in which we conduct our work.”

Among the violations reported across the state, the owners of private wells in Cumberland County near North Locust Point Road in Silver Spring Township reported cloudy water in December.

According to the report, Sunoco’s permits allowed crews to use an open-cut method in that area, meaning they could chop down trees and dig through land to install the pipeline.

But at these sites with the cloudy well water, the company instead used a “trenchless construction” method by boring a drill horizontally underground to move the pipe through. They did this without obtaining permit modifications or authorization, according to the report.

This is a violation of the state’s Clean Streams Law, DEP said.

Those homeowners could not immediately be located for comment, and DEP officials would not share their names, saying they do not release information about private residents.

More violations were reported in a wetland in Lower Swatara Township and off Shaeffer Run in Toboyne Township, Perry County.

Similar to the Cumberland County violations, the Lower Swatara Township incident stems from the company using the boring method instead of open cutting, this time through state waters, according to the DEP.

In Perry County, the DEP received complaints that the company installed a bridge that had been previously deemed to be unsafe by county inspectors, and it was installed over a designated wild trout waterway without obtaining a permit from the department.

The order suspends all work until the department provides authorization for the company to resume construction and gives Sunoco 30 days to submit reports.

“The permit suspension was not the result of a single incident but rather from the pattern of knowing violations of the permit conditions and the numerous pollution events,” DEP press secretary Neil Shader said.

In another part of the state, the Delaware Riverkeeper Network, an environmental group, said Sunoco also violated a settlement agreement with them that had been secured through litigation.

“This project was flawed from the start, and it is disgraceful that these flaws have manifested themselves in such a way that the public’s health, and environment have been significantly impacted,” said Maya van Rossum, leader of the network.

But Blume, who has a farm and gun shop in Upper Frankford Township, said he has had similar problems all along during his fight with Sunoco Logistics.

Blume was among the Cumberland County residents who unsuccessfully tried to stop the pipeline in court.

Construction started on his property in May, toppling trees and upending earth, which he said contaminated his well. He reported this to the DEP but has not heard back yet, he said.

“What polluted my well is they stripped all the top soil off and the grass and the trees,” he said. The disruption infected his water with bacteria that left it yellow and slimy.

The 76-year-old said he has never had water problems on the property until now. He added that the months of noise, construction and destruction of his land have been a hardship.

“They ruined my place, they ruined my life, they ruined everything,” he said.

He is among the last of those involved with the original lawsuit in Cumberland County to continue to fight against the pipeline, and with the DEP’s order halting construction, he sees some vindication for the argument he’s been making.

“There is so much stuff they’re doing wrong, it’s a danger to people and property,” he said. “It should have been stopped a long time ago.”

When complete, the pipeline will be capable of shipping up to 500,000 barrels per day of liquid natural gas, mainly in the form of propane and butane. The company says shipping through a pipeline is cheaper, faster and safer than shipping across the state’s roadways.

Written by: Steve Marroni, PennLive | Photos by Steve Marroni, PennLive

By |January 11th, 2018|Categories: Condemnation, Eminent domain, Pipeline Construction, Property Rights|

PA DEP Suspends Mariner East 2 Construction

The Pennsylvania Department of Environmental Protection has suspended Mariner East 2 construction. Multiple Sunoco Pipeline violations, including some against Faherty Law Firm clients, have led the PA DEP to order a halt on construction.

DEP stops construction on Mariner East 2 pipeline after multiple violations

The Pennsylvania Department of Environmental Protection has suspended all work on the Mariner East 2 pipeline after citing multiple violations.

The 24-page order suspends all construction permits until Sunoco Pipeline LP meets all requirements outlined in the order. Crews can still perform maintenance of erosion controls and limited maintenance of horizontal directional drilling equipment.

“Until Sunoco can demonstrate that the permit conditions can and will be followed, DEP has no alternative but to suspend the permits,” said DEP Secretary Patrick McDonnell in a news release. “We are living up to our promise to hold this project accountable to the strong protections in the permits.”

Some of the terms Sunoco must adhere to include:

  • Addressing all impacts to private water wells in Silver Spring Township, Cumberland County.
  • Identifying all in-progress or upcoming construction activities and detail the specific Chapter 102 and Chapter 105 permit under which the activity is authorized.
  • Submitting a detailed Operations Plan outlining additional measures and controls to minimize inadvertent returns.

Sunoco on Dec. 18 notified DEP that it received two complaints in three days from separate water well owners in Silver Spring Township, saying their water was cloudy.

A DEP inspection determined Sunoco had changed its construction method without first obtaining a permit modification.

The full order, which can be found here, lists a number of violations. Some include discharging industrial waste without a permit and horizontal directional drilling despite not receiving permits to do so.

Mariner East II is to run from Washington County across Pennsylvania to Marcus Hook in Delaware County to move propane and other natural gas liquids across the state.

Written by: Travis Kellar | PennLive

Graphic by: Sunoco Logistics

By |January 5th, 2018|Categories: Condemnation, Eminent domain, Pipeline Construction, Property Rights|

Mariner East 2 Pipeline Update

Faherty Law Firm continues in representation of multiple property owners threatened by the Sunoco Pipeline Mariner East 2 Pipeline. Petitions for Allowance of Appeal  are pending before the Pennsylvania Supreme Court. The primary challenge is that the pipeline is primarily for private, not public, use. The attached StateImpact publication provides further updates.

Top 10 things you need to know about Mariner East 2

Updated, 1:25 p.m. Jan. 3: The DEP has suspended all construction of the Mariner East 2 pipeline, citing permit violations.

Original story: It’s 18 months behind its original schedule, and beset by lawsuits, drilling mud spills, damaged aquifers, a court order and angry residents.

But Mariner East 2, the cross-state natural gas liquids pipeline, is expected eventually to create jobs and provide a lucrative link to world markets for the rich reserves of Pennsylvania’s Marcellus Shale. Sunoco says some gas will be sold domestically as propane. But the bulk of the gas will be shipped to places like Scotland and Sweden, as feedstock for plastics.

Here’s what you need to know now about the controversial project:

1. When is it due for completion? Some time in the second quarter of 2018, according to comments from Sunoco officials during a quarterly earnings call in November. They pushed back the date from the fourth quarter of 2017, and said the DEP had been taking its time approving the company’s plans that would allow it to restart drilling at 63 locations where it spilled drilling fluid earlier this year.

2. Why is the company making new plans for drilling? Because after dozens of spills, it is required to under an agreement with the Department of Environmental Protection and a trio of environmental groups that was brokered by the Environmental Hearing Board in August. The deal told Sunoco to take another look at the geology of spill sites to see if they are suitable for a restart of horizontal directional drilling to create tunnels for the pipeline. DEP must approve the re-evaluation plans.

3. How much progress is Sunoco making on re-evaluating those sites? According to a spreadsheet on the DEP’s website, only 16 of the 63 locations were in the re-evaluation process by Dec. 18, and DEP had approved eight of them. Sunoco had yet to submit its plans for some drill sites.

4. Is Sunoco changing its construction method in response to the order? In a few cases, it is proposing to switch to an ‘open trench’ technique, in which the pipe is laid in a trench and then covered over, rather than buried in a tunnel. In the ‘open trench’ cases, the company said it has determined that a change in the construction technique will best protect local water resources, but it won’t affect the construction schedule.

5. Have the spills stopped with the court order? No. In October, DEP data showed there had been 18 spills, or “inadvertent returns,” since the agreement was signed on Aug. 9. Other spill reports have come from residents and local officials.

6. What does Sunoco say about its compliance with the court order? The company says it has always complied with the order, and is working with the DEP to resolve all remaining complaints. It also says the EHB agreement did not mandate that further spills would not occur.

7. Has the Pennsylvania Public Utility Commission weighed in? Yes. On Dec. 21, the Commission lifted an injunction against construction of a Mariner East 2 valve on a private site in Chester County’s West Goshen Township after Sunoco dropped its plan to build the valve there. But local officials, seeking safety assurances, want the valve built at another location specified by a 2015 settlement agreement, and are continuing their legal case against the company.

8. What’s going on with eminent domain challenges? The Clean Air Council, an environmental group, argues Mariner East 2 does not in fact have the public utility status that allows it to use eminent domain to seize the property of uncooperative landowners. The PUC granted Sunoco public utility status and gave it the ability to use eminent domain. About a dozen eminent domain plaintiffs await a decision by the Pennsylvania Supreme Court on whether it will hear the cases; attorneys are hoping the court will consolidate the cases. Separately, one Delaware County homeowners association is appealing pipeline permits in county court, and the Gerhart family of Huntington County is taking a challenge over wetlands on its property to the Environmental Hearing Board.

9. What about safety of the completed pipeline? Some communities along the 350-mile pipeline route, especially in the densely populated western suburbs of Philadelphia, argue that residents will be exposed to the risk of a major explosion if there is a leak of highly pressurized liquids from the line. Some homeowners fear a drop in the value of properties near the route. In May, a community group in Middletown, Delaware County, released a consultant’s report saying that any leak from the pipeline would ignite immediately and cause serious burns to anyone who is up to 1,100 feet downwind. Sunoco, which argues that its pipelines are subject to rigorous federal and state safety regulations, dismissed the Middletown report as not “responsible.”

10. What’s the status of a risk assessment? U.S. Rep. Patrick Meehan, a Republican who represents parts of Chester and Delaware Counties, urged Gov. Tom Wolf to do a risk assessment of the line, which runs from southwest Pennsylvania to the Marcus Hook terminal near Philadelphia. Some Philadelphia suburban state lawmakers have also petitioned Wolf for a risk assessment and asked him to halt construction. Wolf says he would support a risk assessment, but that it has to be conducted by the PUC. The PUC says it is evaluating Meehan’s request.

Written by: Jon Hurdle | StateImpactPA
Photo by: Emily Cohen | StateImpactPA
Photo caption: A backhoe clears land for construction of the Mariner East 2 pipeline in Delaware County in early 2017.

By |January 5th, 2018|Categories: Condemnation, Eminent domain, Pipeline Construction, Property Rights|

Public Use

The Fifth Amendment to the United States Constitution allows for the condemnation of private property “for public use”. State Constitutions and law similarly limit eminent domain power to only be authorized for a valid public use. If FERC insists on approving pipelines without an adequate public purpose, the law could allow that without eminent domain power. The pipeline companies could then buy property rights from willing sellers. Such is the thrust of the law in the authorizations of hazardous liquid pipelines, as contrasted with natural gas pipelines.

FERC sued over alleged ‘unconstitutional’ granting of pipeline certificates

Via NJ Spotlight

In another challenge to the expansion of natural-gas pipelines, a conservation group is accusing a federal agency of unlawfully allowing the taking of private land in a complaint filed in the U.S. District Court in Trenton.

The lawsuit filed against the Federal Energy Regulatory Commission by the New Jersey Conservation Foundation is the latest legal entanglement involving the 120-mile PennEast pipeline, a project spanning two states and crossing the Delaware River.

The $1 billion project, facing strong opposition in New Jersey and Pennsylvania, has been troubled by numerous delays, including the refusal of property owners to allow PennEast Pipeline LLC access to land along the route.

The standoff has prevented the company from submitting all the information it needs to obtain crucial permits from the New Jersey Department of Environmental Protection. To obtain access, the company is seeking to gain final approval for the project from FERC, a decision that would give it the power of eminent domain over those properties.

In the 20-page filing with the federal court, the complaint advances what its plaintiffs argue is a first-of-its-kind legal challenge, alleging the federal agency is unlawfully allowing companies to seize private property through eminent domain for pipeline construction.

The lawsuit, filed by the Eastern Environmental Law Clinic and Columbia Environmental Law Clinic, also argued the agency failed to demonstrate the project is needed, a point repeatedly made by opponents of the pipeline.

“The Fifth Amendment says that private property can only be taken for public use, and FERC’s pipeline review process doesn’t pass that test,’’ said Tom Gilbert, campaign director of the New Jersey Conservation Foundation.

“For example, hundreds of homeowners, organizations, and local governments could have their land seized through eminent domain for the unneeded, proposed PennEast pipeline, and would be victims of unconstitutional action by the federal government,’’ Gilbert said.

The New Jersey Conservation Foundation owns 20,000 acres of undeveloped and preserved land in the state, according to the complaint.

PennEast claims the project will provide gas to a region where demand is outstripping supplies, resulting in cost savings to consumers and creation of thousands of jobs.

“Our aim is to motivate FERC to amend its policies so the agency ceases its unconstitutional practice of granting certificates for pipelines that are not in the public interest. This will end the unjust seizing of public and private land,’’ said Susan J. Kraham, senior staff attorney at Columbia Environmental Law Clinic.

The complaint seeks to end FERC’s practice of allowing eminent domain authority to seize land that will not be for public use before a pipeline project has received its other required state and federal approvals that might never be issued.

That scenario could unfold in the next month if FERC decides to grant a certificate to the PennEast project, allowing the company to gain access to land on the proposed route.

Photo: Susan Philips | StateImpact Pennsylvania
Photo caption: Part of the proposed PennEast pipeline could run through this stretch of land in Bucks County, Pa.
By |December 7th, 2017|Categories: Condemnation, Eminent domain, Pipeline Construction, Property Rights|

Gas Pipeline Approvals Without A Public Need

An independent analysis has revealed the data showing that federal regulators approved U.S. pipelines providing capacity more than double consumption. The report provides support to those challenging pipeline approval and the use of eminent domain power as lacking the required public need. Challenges to pipelines based on a lack of a public need have improved, albeit still limited, chances of success.

New gas pipeline capacity sharply exceeds consumption, report says

Charges that the U.S. pipeline industry is building far more natural gas pipelines than it needs are being fueled by a new report showing that the capacity of lines approved by federal regulators over the last two decades was more than twice the amount of gas actually consumed daily in 2016.

The report by the independent Analysis Group for the Natural Resources Defense Council said the Federal Energy Regulatory Commission has approved more than 180 billion cubic feet a day (bcf/d) of new pipeline capacity since 1999, when it began its current policy on approving interstate pipelines. The new capacity compares with the average daily consumption of only 75.11 bcf/d last year, the report said.

Even during the Polar Vortex of 2013/14 when exceptionally cold temperatures in the Northeast boosted the need for heating fuel, consumption of 137 bcf/d was still significantly lower than the combined capacity additions, the report said, citing data from the federal Energy Information Administration. In January 2017, national consumption was 93.1 bcf/d, even further below the capacity of the additional pipeline network, the report said. The data on additions to pipeline capacity are from FERC.

NRDC, in the report issued Nov. 6, said the overcapacity is being driven by the profits that can be earned by pipeline builders; by FERC’s willingness to accept builders’ assurances that there is a need for the additional gas, and by the regulator’s existing application policy that does not recognize big changes in the natural gas market since the policy began.

“The report underscores very real concerns that we are overbuilding the natural gas pipeline system,” said Montina Cole, an attorney with NRDC’s ‘Sustainable FERC’ project.

Cole told StateImpact that an increasing number of pipeline builders are justifying their projects with so-called affiliate agreements in which buyers of the gas are commercially linked with the carrier. When the buyer is an electric utility, that means ratepayers end up paying the cost of the pipeline, she said.

“The pipeline developer is really on both sides of the transaction,” Cole said. “They are both selling the capacity, and the buyers are affiliates, which are increasingly electricity companies that have captive ratepayers.”

She argued that FERC, which approves virtually all pipeline applications that come before it, is too ready accept builders’ assurances that there is a need for a pipeline.

“Pipeline companies tell FERC: ‘We can demonstrate the need because we have contracts subscribing the capacity of the pipeline.’ FERC places undue reliance on that in deciding whether a pipeline is needed,” she said.

In a 2-1 ruling, the U.S. Court of Appeals for the District of Columbia Circuit found that the Federal Energy Regulatory Commission failed properly quantify greenhouse gas emissions linked to a pipeline expansion project in the southeastern U.S. Marie Cusick / StateImpact Pennsylvania

In a recent 2-1 ruling, the U.S. Court of Appeals for the District of Columbia found the Federal Energy Regulatory Commission failed properly quantify greenhouse gas emissions linked to a pipeline expansion project in the southeastern U.S.

Despite the high cost of building new pipelines and the existence of spare capacity in existing lines, builders are attracted to new projects because they are more profitable, Cole argued.

“There’s a lot more money to be made if you build that new pipeline, and you have a guaranteed recovery of your costs,” she said. “It’s a very lucrative business.”

The Interstate Natural Gas Association of America, which represents pipeline builders, rejected the calls for a reform to FERC’s pipeline policy, saying it has served consumers by responding quickly to market need.

“The responsiveness of FERC’s certificate process has enabled U.S. consumers and the economy to benefit very quickly from the shale revolution,” said INGAA spokesman Cathy Landry. “This would not have occurred had FERC been bound by a policy requiring extensive proceedings to establish an administrative determination of the needs of the market.”

Landry said the idea of FERC incorporating regional planning into its application process, as proposed NRDC, would be at odds from the regulator’s “pro-competition” policies that rely on the “real world commitments” of pipeline companies to demonstrate market demand.

Still, the issue of over-capacity in the pipeline industry has also been raised by the U.S. Department of Energy, which said in 2015 it expects the rate of pipeline additions to slow in future as gas is increasingly carried in pipelines that have been built over the last decade in response to the shale boom.

“Higher utilization of existing interstate natural gas pipeline infrastructure will reduce the need for new pipelines,” the DOE said in a report.

Meanwhile, the NRDC said FERC’s policy on evaluating pipeline applications does not take into account significant market changes since the policy took effect, including a huge increase in shale gas production, public concerns on whether fracking taints drinking water, and how climate is affected by the shale gas boom.

“The time is ripe for FERC to undertake a structured and collaborative review of its pipeline certification guidance and policy,” said the report’s author, Susan Tierney, a former assistant secretary for policy at the DOE, in a statement.

FERC would not say whether it is looking at the NRDC report, how it responds to charges that it is approving too much pipeline capacity, or whether it is considering a review of its 1999 policy. “We don’t comment on outside reports,” said spokeswoman Celeste Miller.

But Commissioner Cheryl LaFleur indicated her own concerns with FERC’s approval process when she dissented in October from the commission’s approval of the Atlantic Coast and Mountain Valley Pipelines in West Virginia, Virginia and North Carolina, saying both projects would have significant environmental effects.

LaFleur, the only Democrat among the three current commissioners, said the FERC process would benefit from a fuller consideration of how to balance pipelines’ environmental effects, including downstream impacts, with their need.

John Quigley, former secretary of Pennsylvania’s Department of Environmental Protection, said that big changes to the supply of and demand for natural gas since the FERC policy was implemented would justify a fresh look at whether it is working as it should.

“When you look at the impact that this buildout clearly is having in states like Pennsylvania, the environmental impacts, the potential impacts in terms of public health, risks to public safety, climate risks, all of that needs to be considered,” he said. “It is not at all unreasonable to ask that they be considered anew given the rapid change and the scale of the challenge.”

On the issue of overcapacity, Quigley said that national figures may obscure regional variations in states like Pennsylvania where there are not yet enough pipelines to bring huge quantities of Marcellus gas to market.

“Generally speaking, there’s a lot of evidence to suggest overcapacity but when you look at regional and subregional places, especially in Pennsylvania, there’s a pretty strong argument on the other side that given the immense volume of gas that is being produced, it still can’t get delivered to the most lucrative markets,” said Quigley, who is now director of the Center for Environment, Energy and Economy at Harrisburg University of Science and Technology.

In Pennsylvania and New Jersey, opponents of the PennEast Pipeline project argue there’s no need for the line that would carry natural gas some 120 miles from the Marcellus Shale of Luzerne County, Pa. to Mercer County, NJ.

Their argument was backed up in 2016 by the New Jersey Division of Rate Counsel, a public advocate for utility ratepayers, which said the PennEast Pipeline Co. had failed to demonstrate the need for the gas that would be carried by the line, and seemed to be motivated “more by the search for higher returns on investment than any actual deficiency in pipeline supply or pipeline capacity to transport it.”

In a response to claims that the pipeline was not needed, PennEast released a consultant’s report in 2015 saying that energy consumers in New Jersey and eastern Pennsylvania could have saved $890 million in additional energy costs if the pipeline had been operational in the cold winter of 2013/14.

PennEast is still waiting for FERC to issue a Certificate of Public Convenience which would allow it to begin eminent domain proceedings against landowners who have refused its offers of compensation. The company previously said it expected the certificate to be issued in the summer of 2017, and now says it expects FERC to do so “shortly,” according to company spokeswoman Pat Kornick. She predicted the pipeline will be operational in the second half of 2018.

Written by: Jon Hurdle | StateImpact Pennsylvania

Top photo caption: Workers unload pipes at a staging area in Worthing, S.D., for the 1,130-mile Dakota Access Pipeline. A new report says the nation’s new natural gas pipeline capacity resulting from a building boom is far more than is needed. Photo by: Nati Harnik / AP Photo
By |November 22nd, 2017|Categories: Condemnation, Eminent domain, Pipeline Construction, Property Rights|

Susquehanna Thruway Rerouted

Property owners threatened by the Susquehanna Thruway will be able to learn the status of their property on November 15, 2017 when PennDOT reveals the new route at a public meeting. Faherty Law Firm attorneys will attend the meeting and be available to answer questions.

PennDOT sets new route for Susquehanna thruway

The Pennsylvania Department of Transportation has announced the new alignment it prefers for a 2-mile section on the Central Susquehanna Valley Thruway in Snyder County.

PennDOT was forced to find a new path for part of the U.S. Routes 11/15 bypass of Shamokin Dam and Hummels Wharf after discovering the limited-access highway could not be built over two fly-ash basins.

It studied three alternatives and said it is recommending the route that passes east of the basins.

It has the least impact on homes, farm land and noise levels, it says.

It will require taking seven additional residences, said Matt Beck, assistant plans engineer.

Five other residences already are acquired and will not be needed, he said. Nothing will happen to those properties until the project is completed, he said.

The public will have the opportunity on Wednesday to view the new route and discuss it with design team members at a 6:30 p.m. meeting at the Selinsgrove Middle School.

Final design work on the thruway’s southern section between the northern end of the Selinsgrove bypass and the Winfield area has been delayed by the necessity of finding a new route to avoid the ash basins.

The next step will be for PennDOT to obtain environmental approvals, which could take much of 2018, Beck said.

Federal Highway Administration approval will be needed before design work in the area of the ash pits can begin in earnest, he said.

It is anticipated the eastern alignment will take more traffic off local roads because the state Route 61 connector via the Veterans Memorial Bridge into Sunbury will be shorter, Beck said.

Construction is underway on the CSVT northern section, between the Winfield area and state Route 147 north of Montandon, Northumberland County. That section includes a nearly milelong bridge over the West Branch of the Susquehanna River.

The northern section is scheduled for completion in 2021, but PennDOT has not said if it will open it then or wait until the southern section is finished.

It is too early to know if the ash basin issue will push back the scheduled 2024 completion for the entire $670 million 12.4-mile thruway Beck said.

Written by: John Beauge | PennLive 
Photo caption: Piers begin to take shape for the 4,500 foot-long bridge that will carry Central Susquehanna Valley Thruway traffic across the West Branch of the Susquehanna River. 2017 PennLive file photo

By |November 13th, 2017|Categories: Condemnation, Eminent domain, Property Rights|

Atlantic Sunrise Stay Followed By Construction Restart

Environmental groups were able to convince a Federal Court to stop construction while environmental concerns were considered. The U.S. Court of Appeals for the District of Columbia ended the stay. This allows construction to be restarted.

Pipeline construction to resume as federal court dissolves stay

Construction of the Atlantic Sunrise natural gas pipeline will resume today.

That was the comment from Williams Partners on Wednesday night after the U.S. Court of Appeals for the District of Columbia dissolved the administrative stay it had issued Monday.

The court’s one-page order states the seven environmental groups that wanted to stop the pipeline project had not satisfied the stringent requirements for a stay.

A three-judge panel had issued it saying the court needed time to review the environmental organizations’ contention the Federal Energy Regulatory Commission’s review of the project did not meet the standard for evaluating greenhouse-gas emissions.

The groups, which included Concerned Citizens of Lebanon County, Lancaster Against Pipelines, Lebanon Pipe Awareness and the Sierra Club also claimed completion of the pipeline would encourage more drilling for natural gas.

“We are pleased the court has lifted the administrative stay,” Williams said in a statement.

“We will promptly resume construction activities on this important pipeline project, which will leverage existing energy infrastructure to deliver economic growth and help millions of Americans gain access to affordable Pennsylvania-produced clean-burning natural gas.

“Thousands of workers in Pennsylvania will be back on the job (today).” The stay had stopped all construction activity on the pipeline in Pennsylvania.

Issues raised in motions to dismiss the stay were factors in the court’s decision, to dissolve it, the ruling stated.

FERC was among those opposing the stay, claiming it was overbroad.

Williams, based in Tulsa, Oklahoma, contended the stay was unwarranted because FERC undertook a nearly four-year extensive review of the project before issuing a certificate of public convenience in February. Williams’ subsidy, Transcontinental Gas Pipeline, then obtained the required permits from the state Department of Environmental Protection and began construction of 186 miles of pipeline in Pennsylvania on Sept. 17.

The nearly $3 billion Atlantic Sunrise project will increase the amount of Marcellus Shale gas that can be transported into the South. The pipeline will cross 10 Pennsylvania counties including Lancaster and Lebanon.

The project includes revising piping in six compressor stations in Maryland, Virginia and North Carolina to permit natural gas to flow in both directions. Earlier Wednesday, the appeals court clarified its stay order saying it applied to construction activities only in Pennsylvania.

Written by: John Beauge | PennLive
Photo captyion: Lancaster Against Pipelines protesters block a construction entrance near Columbia, Lancaster County, last month. 2017 PennLive file photo

By |November 12th, 2017|Categories: Condemnation, Eminent domain, Pipeline Construction, Property Rights, Uncategorized|