Author

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.

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.

ATLANTIC SUNRISE
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|

FERC Commissioners

In August of 2017 the Federal Energy Regulatory Commission returned to an adequate number of Commissioners to act on pipeline proposals. FERC is widely expected to soon approve the 120 mile long PennEast pipeline from Luzerne County, Pennsylvania to Mercer County, New Jersey. Property owners who refused negotiations may soon be faced with condemnation of pipeline easements.

PennEast pipeline set for FERC approval after Senate confirms new commissioners

The Federal Energy Regulatory Commission is likely to issue its final approval to the controversial PennEast Pipeline project through Pennsylvania and New Jersey now that it has a quorum of commissioners for the first time since February, observers said on Friday.

The top federal regulator of interstate pipelines is expected to issue a Certificate of Public Convenience and Necessity to the project this summer, allowing it to use eminent domain to take land for construction from landowners who have refused its offers of compensation.

FERC has a quorum now that the U.S. Senate approved two of President Trump’s nominations Thursday. Robert Powelson, a member of Pennsylvania’s Public Utility Commission, and Neil Chatterjee, an energy advisor to Senate Majority Leader Mitch McConnell, will serve on the panel.

Their confirmation is expected to allow FERC to resume its reviews of permit applications for PennEast and other pipelines. The commission almost always approves such proposals, leading the agency’s critics to call it a “rubber stamp” for the fossil fuel industry.

“We have no reason to believe that their approval of pipelines will be any different now than it has been under previous quorums,” said Kathryn Urbanowicz, a staff attorney with the environmental group Clean Air Council in Philadelphia, which opposes PennEast.

She said FERC may issue the certificate soon, since that action usually quickly follows the agency’s final environmental impact statement, which it issued to PennEast in April, saying the project would have “less than significant” environmental impact.

Mary O’Driscoll, a spokeswoman for FERC, said she didn’t know when the commission would consider the PennEast application. She declined to respond to renewed claims that FERC is historically biased toward the fossil fuel industry.

The PennEast Pipeline company, which has said it expects to receive the certificate this summer, welcomed the Senate’s approval of the new commissioners.

“We are heartened to finally see Senate action on restoring a quorum to FERC to now consider important infrastructure projects across the country, including final approval of the PennEast Pipeline Project,” said Dat Tran, chairman of the PennEast board, in a statement. “We are confident in our application to deliver clean-burning, low-cost American energy to families and businesses throughout the region for decades to come.”

The Energy Equipment and Infrastructure Alliance, a trade group that lobbied for the FERC confirmations, also welcomed the Senate’s approval, and urged the commission to immediately begin consideration of applications such as PennEast’s.

“This is a win for workers across the energy supply chain, and every American that benefits from access to affordable energy,” said Toby Mack, President of EEIA, in a statement. “This is a step in the right direction to creating jobs, growing our economy and making America stronger.”

If finally approved by FERC and other state and federal regulators, PennEast will carry natural gas from the Marcellus Shale in Luzerne County, Pa. about 120 miles to Mercer County, N.J. The project has encountered strong resistance from communities along the route, and from environmental groups who say it is an unnecessary pipeline that will fragment forests, threaten waterways and encourage the production of climate-warming fossil fuels.

Even with the expected FERC approval, the pipeline requires more permits from New Jersey, Pennsylvania, the U.S. Army Corps of Engineers, and the Delaware River Basin Commission, an interstate regulator which plans to hold public hearings on the project but has yet to schedule them, said Clarke Rupert, a spokesman for DRBC.

In June, New Jersey’s Department of Environmental Protection rejected PennEast’s application for a water-quality permit on the grounds that the company had failed for the second time in two months to submit all the required information. The company said it would reapply.

Critics of PennEast include the environmental group Delaware Riverkeeper Network which unsuccessfully sued FERC in 2016, alleging that the agency’s policy was biased toward the pipeline industry.

DRN’s head, Maya van Rossum, said Friday that whether the pipeline is built is likely to depend on regulators other than FERC. She said FERC has denied only one pipeline project in 30 years. FERC’s O’Driscoll would not confirm or deny that assertion.

“Thankfully, nobody has been counting on FERC to do the right thing and say ‘no’ to PennEast,” van Rossum said. “We always knew it would come down to these other agencies.”

She said FERC’s likely approval won’t deflect opposition. “The community is not going to take this lightly. There is still a lot of fight left and opportunity to defeat this project.”

Lynda Farrell, executive director of the Pennsylvania-based Pipeline Safety Coalition, predicted that FERC will come under renewed pressure from both sides of the PennEast debate now that it has a quorum.

“I’m sure that all pipeline operators are breathing a sigh of relief as pipeline opposition groups are rolling up their sleeves,” she said. “The commission is going to be pressured by operators for fast-tracking.”

Story written by: By Jon Hurdle | StateImpact Pennsylvania
Photo by: Jon Hurdle / StateImpact PA
Photo Caption: Roy Christman (left) and William Kellner, protested plans to build the PennEast natural gas pipeline, at a FERC ‘listening session’ near Jim Thorpe, Pa. in 2016

By |September 15th, 2017|Categories: Eminent domain, Pipeline Construction, Property Rights|

Transcourse Energy

The Transcourse Energy plan for a high voltage power line in York County is reported to progress to a final route proposal to the Pennsylvania Public Utility Commission by November 15, 2017. Owners should consult an experienced eminent domain attorney to protect owner rights on issues such as:

  • Eminent domain power
  • Regulatory approvals
  • Survey requests
  • Precondemnation activities
  • Harm to views
  • Electromagnetic fields
  • Easement terms
  • Proof of harms
  • Methods to value property
  • Just compensation
  • Condemnor payment of fees of owners

Experts: Landowners in path of power line project should know rights

Southern York County landowners who attended an informational meeting Thursday, Aug. 24, said they are prepared for a door knock if or when Transource Energy officials decide to step onto their property.

Hundreds of Hopewell, East Hopewell, Fawn and Lower Chanceford township residents stand to lose a portion of their land to a new above-ground high-voltage power-line project. Three state experts explained to them the rights they have to fight it.

Transource has the power of eminent domain, which means property owners’ land can be seized and used to build public utility infrastructure. And that power could trump any land considered part of preservation or agricultural security areas, experts said.

It is up to the Pennsylvania Public Utility Commission to approve the power-line project.

Property rights: “You have property rights,” Penn State Law staff attorney Sean High said. High researches agricultural law issues for the Penn State Center for Agricultural and Shale Law.

PJM Interconnection, which coordinates the movement of wholesale electricity in 13 states and the District of Columbia, claims that the project will allow existing power to freely flow south from a northern portion of the regional grid to help decrease ratepayers’ electric bills.

Despite their claim, High said, landowners can still play offense.

High encouraged landowners to hire an attorney who can write a binding contract that spells out specific concerns they have regarding eminent domain. For example, he said, if a farmer grows organic vegetables, construction trucks nearby or on their land could ruin the farmer’s business.

The $320 million “market efficiency” project is a first of its kind in Pennsylvania, state acting consumer advocate Tanya McCloskey said. It has an east and west component that affects residents of Franklin and York counties.

The project calls for 135-foot towers and miles of new transmission lines, according to Transource.

Community preparedness: “I feel the community is more prepared for Phase Two of the project,” Kim Carrick said.

Carrick is a member of the Stop Transource in Pennsylvania and Maryland group whose property is not affected by the proposed project. She said it’s her responsibility to support her community, adding she thought the agency experts’ presentations were “very concise.”

The final route for the power line is expected to be submitted to the state utility commission within the next two months, Transource spokeswoman Abby Foster said.

Public hearings: Once it’s submitted, there’s a checklist of items the commission needs to oversee, including hosting public hearings, before a final approval is rendered, McCloskey said.

She urged landowners to be part of the process. She told them to “bring information and present it to the commissioners.”

“Often farmland is viewed as the path of least resistance,” Pennsylvania Bureau of Farmland Preservation Director Doug Wolfgang said.

He said the project and its proposed route amounts to a land-use balancing act. Population projections in central Pennsylvania show a steady increase over the next several years, Wolfgang explained.

He said he strongly believes in farmland preservation, but he said he also knows the state is looking at supply and demand of pending electricity needs. And, rather than creating a route through a residential development, it’s often easier for infrastructure and transportation projects to run through farmland.

Frank Ayd, 44, of East Hopewell Township, said he, too, feels members of Stop Transource are more prepared after the meeting.

He said he and others are not naive, and if surveyors show up, “it can be very destructive,” which means fencing and trees could be removed and soil and livestock could be disturbed.

“Therefore, if contacted, I would never give permission to anyone I don’t know to even walk my property line,” he said.

Written by: Jana Benscoter | YorkDispatch

By |September 13th, 2017|Categories: Condemnation, Electric Transmission, Eminent domain, Property Rights|

Atlantic Sunrise Condemnations

A challenge to eminent domain by a group of Roman Catholic nuns has been defeated. Federal Judge Jeffrey Schmehl approved the use of eminent domain for a project which was approved by the Federal Energy Regulatory Commission. Challenges, after Federal Regulatory approval via the Natural Gas Act, are regularly denied by Federal judges. Williams Company wrote in August of 2017 that construction will commence on or about September 15, 2017.

Judge grants pipeline builder possession of properties

A judge gave the builder of the Atlantic Sunrise gas pipeline possession of five remaining properties in Lancaster County on Wednesday, including a right of way through land owned by Roman Catholic nuns near Columbia, LancasterOnline reported.

U.S. Eastern District Court Judge Jeffrey Schmehl granted the Transcontinental Pipe Line Co.’s motion to condemn the rights of way.

The Atlantic Sunrise project is a $3 billion expansion of the existing Transco natural gas pipeline system, which delivers about 40 percent of the natural gas consumed in Pennsylvania.

The project has drawn opposition, including from the group Lancaster

Against Pipelines, and the Adorers of the Blood of Christ, who built a chapel in protest on land they own.

A spokesman for Williams Partners, which owns Transco, said that the nuns would not have to remove the chapel right away but that they will have to move it before construction begins.

The nuns’ lawsuit against against Transco and the Federal Energy Regulatory Commission is pending, Lancaster-Online reported.

Provided by: LancasterOnline – From staff reports

By |August 31st, 2017|Categories: Condemnation, Pipeline Construction, Property Rights|

Draft Settlement Re Mariner East 2 Spills

In draft deal, Sunoco agrees to new pipeline drilling conditions as groups withdraw court challenge

Sunoco Pipeline agreed on Tuesday to meet new environmental safeguards for drilling on its Mariner East 2 pipeline project in return for withdrawal of a court challenge by three environmental groups.

The two sides reached a draft settlement agreement that may avert a hearing before Pennsylvania’s Environmental Hearing Board if the judge in charge of the case approves the details. A ban on many of Sunoco’s horizontal directional drilling sites, imposed by Judge Bernard Labuskes on July 25, remains in place until he decides whether to sign off on the deal.

The hearing that was due to begin Wednesday has been canceled.

If the judge confirms the agreement, Sunoco will take steps to protect private water wells, some of which were contaminated by the drilling in recent months. The company agreed to notify landowners within 450 feet of a horizontal drilling location ten days before it starts work there, and to offer to test their water before, during and after the operation.

“Sunoco will immediately notify a landowner with a water supply within 450 feet of an HDD when Sunoco or the Department has determined that there is a substantial possibility that the operation of the HDD will impact his or her water supply,” the agreement said.

The company also agreed to re-evaluate the geology at drilling sites after puncturing aquifers in some locations, disturbing the water supplies of some residents whose private wells draw on those aquifers. Sunoco also said it would file reports of its plans to the Pennsylvania Department of Environmental Protection.

The re-evaluation of horizontal directional drilling sites, as agreed to by Sunoco, includes sites where there was an “inadvertent return” of drilling fluid, the term used by the company for a spill. The company said it would consider data that are specific to each drilling site, and conduct extra geotechnical evaluations such as seismic surveys and ground-penetrating radar as appropriate. The re-evaluations will be certified by a professional geologist with relevant experience, the agreement said.

For each site, the company agreed to file a report with the DEP explaining how it plans to “eliminate, reduce or control” the release of drilling fluids. And it said the DEP could modify the new drilling plans if appropriate.

The deal was made with three environmental groups who were seeking to extend a two-week drilling ban at 55 active sites that the judge imposed after dozens of spills of drilling fluid-tainted private water wells and flooded wetlands in some places along the 350-mile pipeline route. Check out our map of the spills here.

The groups – Clean Air Council, Delaware Riverkeeper Network and Mountain Watershed Association – were preparing to argue their case before the Board starting Wednesday, but withdrew their demands in the agreement.

The agreement does not affect the groups’ existing appeal at the EHB of the DEP’s permits for the pipeline, said Alex Bomstein, an attorney for the Clean Air Council.

State Senator Andy Dinniman, a Democrat who has called for a halt to all Mariner East 2 construction until the water contamination problems can be fixed, issued a statement saying the agreement gives the DEP a chance to take another look at the case.

Dinniman has accused the state agency of failing to properly scrutinize Sunoco’s permit applications.

“Although this latest development is the result of citizens, environmental groups, and nonprofit organizations – not DEP – demanding action, DEP is essentially given a second chance,” Dinniman said.

“In turn, it seems like DEP now has a golden opportunity to re-review permits and reports and do its due diligence in protecting the environment, homeowners, and their water resources. Hopefully, this time, DEP does its job the right way. Either way, know that we will be watching very closely,” he said.

Last Thursday, the judge lifted the ban at 16 of the 55 sites after Sunoco argued the work stoppage would damage equipment, hurt the environment, or endanger public safety.

The July 25 order was the biggest setback so far to construction of the more than $2.5 billion pipeline, which will carry natural gas liquids from the Marcellus Shale of southwest Pennsylvania to an export terminal at Marcus Hook, near Philadelphia. It followed another judge’s order to halt construction in West Goshen Township, Chester County, and comes amid a legal challenge to the project’s claimed status as a public utility.

This story has been updated to clarify that the settlement agreement does not affect an appeal by the environmental groups against DEP permits for Mariner East 2. That appeal before the Environmental Hearing Board will continue.

Written By: Jon Hurdle | StateImpact Pennsylvania
Photo by: Lindsay Lazarski / WHYY
Photo caption: In the distance, construction of the Mariner East 2 pipeline at Raystown Lake Recreation Area in Huntingdon County, Pennsylvania. Sunoco is drilling beneath the lake as part of construction. On Tuesday, the company agreed to meet new environmental safeguards for drilling on the project in return for withdrawal of a court challenge by three environmental groups.

By |August 9th, 2017|Categories: In the News, Pipeline Construction, Property Rights|

FERC Asked to Investigate Mariner East 2

Recent construction spills and contaminated water has resulted in a U.S. Congress request for a FERC investigation. In the interim, a Pennsylvania Environmental Board hearing which was scheduled for August 7 was postponed to August 9 while negotiations progress concerning the order to halt horizontal drilling.

Democratic lawmakers ask FERC to investigate Mariner East 2 pipeline builder

Two ranking Democrats in Congress have asked the Federal Energy Regulatory Commission (FERC), to further investigate the practices of pipeline builder Energy Transfer Partners, which has merged with Sunoco Logistics, after spills and permit violations occurred on two of its major projects in three different states, including the Mariner East 2 pipeline here in Pennsylvania.

In a letter to FERC last Thursday, Congressman Frank Pallone Jr., and Washington state Senator Maria Cantwell, detail recent spills in Ohio, West Virginia and Pennsylvania, and criticize the company for misleading regulators by destroying an historic home in Ohio. StateImpact reported recently on a judge ordering ETP/Sunoco to stop construction on a valve station in West Goshen Township, where the company began building a valve station at a location the township had not agreed to.

We first heard about problems with Chester County water July 4th weekend, when we got several emails telling us construction of the Mariner East 2 pipeline had polluted well water. When we went to check it out and knock on doors in West Whiteland Township, we found David Mano, and his fiancé Dianne Salter in their backyard pool.

Mano says he didn’t even know about the pipeline construction until a neighbor called and told him to check his well water.

“Which I did Wednesday evening when I came home, and my water was light brown, full of sediment,” he said.

Sunoco, which recently merged with Energy Transfer Partners, is building the more than $2.5 billion dollar pipeline to carry natural gas liquids from the Marcellus Shale fields to an export terminal in Marcus Hook, Delaware County. The company is also building other pipelines across the country, including the Dakota Access pipeline, which native Americans opposed.

The Mariner East 2 is controversial primarily because the state Public Utility Commission allowed the company to take land through eminent domain, which so far has been backed by the courts. Despite pending lawsuits, protests and petitions, construction began in February.

Township officials said the water problems in Mano’s neighborhood of West Whiteland Township were caused by drilling mud, which leaked into the aquifer supplying his well. The company says it’s a non-toxic clay slurry called bentonite, which is often used in things like kitty litter and make-up.

It may be non-toxic but Mano says, he’s not drinking it.

“Ok, so you want me to drink cat litter and women’s foundation make-up in my water? I don’t think so.”

Drilling mud in large quantities can plug up an aquifer. It can also smother aquatic life if it gets into streams and wetlands.

Sunoco responded quickly, delivering water to residents and putting them up in hotels. They tested the well water.

Township officials said Sunoco told them the problem should clear up in a week or two. But a few days later, on July 11, Sunoco offered to pay the costs to hook up the 15 to 30 impacted households to public water supply.

At a public meeting in West Whiteland Township two days later, Sunoco said their preliminary tests showed no toxins in the water. Company officials also said the tests didn’t find bentonite clay. Still, some residents wells had dried up. The company said it would halt construction at the site temporarily. Jeff Shields is Sunoco’s spokesman.

“It’s important to us to have decent relationships with our neighbors,” said Shields. “We’re impacting their lives we understand that. Just by construction we’re impacting their lives. So take that extra step when their well water is impacted we need to do something and we are.”

But at the meeting several residents who had not previously known about the pipeline, expressed fears that once it’s built there would be safety risks. The highly explosive natural gas liquids become a colorless odorless gas when in contact with air.

Dianne Salter, a resident with impacted well water, said that’s what really scares her, more than the water.

“So it’s really a fear of an explosion, If it does leak on our neighbor’s lawn and they don’t recognize that cloud or fog on the ground, one lady smokes, she drives by and throws her cigarette out the window, we’re goners, we’re gone.”

Sunoco says their pipelines are safe. But an investigation by Reuters found it to have the worst safety record of any pipeline company.

The day after the meeting in West Whiteland, July 14, several state lawmakers asked the DEP to halt drilling or construction along the 350-mile long route, including state Senator Andy Dinniman.

“What we cannot understand and what we reject is the fact that the state and the pipeline companies have not proceeded to do this in a way to protect our health and safety and our environment,” Dinniman said.

On Thursday, July 20, one week later, Governor Wolf responded to Dinniman and other critics by issuing a statement that DEP should use its authority to hold Sunoco accountable.

On Friday, July 21 the DEP published a list of 49 drilling spills that occurred across the state since May. It was ten days after StateImpact had originally asked the Department for the list.

One spill included 160,000 gallons into a world class trout stream in Cumberland County. Another included 20,000 gallons into a Trout stream in Westmoreland County.

The DEP had issued 4 violations, and one fine.

Then Tuesday, July 25, an Environmental Hearing Board judge ordered Sunoco to halt drilling in 55 locations. On Friday, the judge allowed pipeline drilling in 3 locations for safety reasons. The judge was responding to a motion by the Clean Air Council, which is appealing the construction permits issued to Sunoco by DEP back in February.

The lawsuit claims the permits were incomplete, and did not provide assurance that Sunoco would build the pipeline while protecting the environment. Previous efforts to halt construction by the plaintiffs had failed.

David Mano, from West Whiteland Township, wished the shut down would have been sooner.

“How could they have let this happen to begin with and have all these issues, all the way down the pipeline and basically all the politicians everybody just turned their back and let Sunoco have their will,” he said.

On Monday, we learned from the Clean Air Council, that the documents from DEP obtained through litigation showed 90 spills in 61 locations.

Energy Transfer Partners, which is now one and the same with Sunoco, has also had problems in other states. West Virginia’s DEP shut down operations due to similar water contamination incidents with the Rover pipeline. And the Federal Energy Regulatory Commission shut down construction in Ohio after 2 million gallons of drilling mud spilled into a wetland last April during construction.

FERC actually doesn’t have jurisdiction over the Mariner East 2 pipeline, but the spills added emphasis to the congressional letter.

In the letter to FERC, Congressman Pallone and Senator Cantwell asked FERC to investigate Energy Transfer Partners/Sunoco because “all of these issues raise serious concerns.”

A spokesman for the Rover Pipeline, Alexis Daniel, said in a statement that ETP has fully cooperated with state and federal regulators.

“We have maintained an unwavering commitment to the safe construction and operation of our pipelines to ensure the safety of our employees, the safety of the environment and the safety of those who live and work in the communities in which we do business,” wrote Daniel.

Sunoco spokesman Jeff Shields, says the cause of the problems in West Whiteland Township are not thought to be drilling mud.

“Instead, it appears the drill caused water to temporarily drain from the aquifer, and the lowered water table caused people to lose water pressure and/or the low water level stirred up sediment from the bottom of their wells, hence the cloudy water,” wrote Shields in an email. “So the issue in West Whiteland was caused by the drill itself, not by the drilling mud, at least according to the evidence we have seen.”

Jon Hurdle contributed to this report.

This piece was updated with a statement from ETP, and a new explanation from Sunoco on how the well water became muddy.

Correction: An earlier version of this piece said Sunoco told us the cause was drilling mud, it was township officials who told us this.

Written by: Susan Phillips | StateImpact Pennsylvania
Photo: Lindsay Lazarski / WHYY
Photo caption: Construction of the Mariner East 2 pipeline in Huntingdon County, Pennsylvania.

By |August 9th, 2017|Categories: In the News, Pipeline Construction, Property Rights|

Sunoco Pipeline Construction Spills

Property owners along the route of the Mariner East 2 construction would be wise to inspect their property following multiple construction spills. The following news story discusses the spills. The referenced list of 49 incidents is also included. View the list here. Construction spills could result in DEP fines. They could also result in Sunoco Pipeline liability for property harm beyond acquired property rights.

DEP issues few violations, one fine for Sunoco’s pipeline construction spills

Pennsylvania’s Department of Environmental Protection has issued four Notices of Violation, one consent order and one fine to Sunoco Pipeline for dozens of drilling mud spills that occurred along the length of the Mariner East 2 pipeline construction project. The DEP released a statement on Friday describing its efforts to manage Sunoco’s construction of the 350-mile long pipeline where drilling has caused water-contamination incidents in recent weeks.

DEP also provided a link to a list of 49 incidents, as well as copies of the Notices of Violations, one of which was issued on Thursday.

The agency fined Sunoco $87,600 and issued a consent decree on June 27 for 13 separate drilling mud spills that occurred between May and June in Cumberland County. The Notices of Violations report 552,000 gallons of bentonite mud spilled into LeTort Spring Run, an Exceptional Value wetland in Cumberland County. Exceptional Value waterways are those that are clean enough to support fish and wildlife, such as wild trout streams, or those that have high value recreational use.

In response to a Notice of Violation, Sunoco said on June 7 that it had “contained, captured and recirculated” the fluid back to the drill rig, and that it was not “discharged throughout the wetland.”

But the consent decree, dated about three weeks later on June 27 reports that Sunoco had not yet remediated the problem, and had shut down operations at DEP’s request on June 9. Up until Friday’s release, no public notification had been made of this incident.

Sunoco spokesman Jeff Shields said there was a release of 1,500-2,000 gallons into the LeTort wetland at the Cumberland County site but the company had recorded the 552,000 gallons because that was the volume of fluid that was recirculated through pumps during the cleanup.

Bentonite mud is non-toxic to humans, but can ruin aquifers, and in large quantities smother aquatic life. A recent spill in an Ohio wetland of several million gallons of drilling mud during pipeline construction resulted in the operation halted by federal authorities. Ohio’s environmental regulators tested the mud and found diesel fuel had been added. The company building the Rover pipeline through Ohio is Energy Transfer Partners, which recently merged with Sunoco.

Violations were also issued as a result of drilling mud spills in Brookhaven, Delaware County in May, and another in Middletown Township, Delaware County due to an incident that occurred earlier this week.

DEP’s statement follows a chorus of complaints from private well owners whose water has turned cloudy or dried up in some places along the line. The incidents have prompted calls for a halt to drilling, or even to all Mariner East 2 construction, from state lawmakers representing some affected parts of the route.

Gov. Tom Wolf responded to angry residents and their representatives on Thursday by ordering the DEP to do what was legally possible to fix the problem.

In Friday’s statement, DEP Secretary Patrick McDonnell said he wanted to assure the public that the DEP is taking their complaints seriously.

“With so much concern about the Mariner East 2 pipeline, the public needs to know that DEP is taking its oversight and regulatory enforcement role seriously,” McDonnell said. “This project has raised questions about public health and the health of the environment, and it is important to be transparent about the issues that have arisen over the course of the construction.”

McDonnell said there are “numerous” investigations underway into further possible violations, and that he expects to take more enforcement actions. He described the actions taken so far as “not the end of the road but the beginning.”

There were 61 spills of drilling fluid between April and June, according to documents turned over by DEP as part of a lawsuit challenging permits issued by the agency back in February. The discrepancy in the number of cases between the court filed documents and DEP’s recent release, is unclear.

DEP continues to face accusations that it issued permits for the pipeline even though deficiencies remained in Sunoco’s application, and that it has not required Sunoco to comply with permit conditions.

Critics said the DEP’s enforcement actions, and promises to do more, were not enough to ensure that drinking water and the natural environment are protected from the pipeline project.

“The fines levied by DEP are trivial,” said Eric Friedman, a member of the Middletown Coalition for Community Safety, an anti-pipeline group in Delaware County, where horizontal directional drilling this week resulted in a leak of bentonite, a non-toxic drilling mud, into a creek. “Their ability to deter continued unlawful behavior by Sunoco is insignificant.”

The group urged Gov. Wolf to halt construction, and for DEP to revoke the construction permits pending a public review that includes risks to public safety from the project.

State Rep. Leanne Krueger-Braneky, a Delaware County Democrat, said the DEP’s actions do not deflect her earlier call for a halt to all pipeline construction pending an investigation into the causes and solutions to the leaks.

“I still believe that the responsible thing to do would be to halt construction until their investigations are completed,” she said, referring to the DEP.

She described the enforcement actions as a “positive first step” but argued that they don’t solve the “systemic problem” that Sunoco continues to leak drilling fluid into creeks and impact aquifers.

“A handful of notices of violation don’t seem to be enough to hold Sunoco accountable,” she said.

Sunoco’s Shields noted that the company halted drilling in West Whiteland Township, Chester County on July 13 after some residents’ wells were affected. The company had restarted drilling several days after the accident, but has since shut down operations at the site.

“We are continually evaluating our drilling plans, and while construction continues throughout the rest of the state, we are working to ensure that the Governor’s concerns are addressed,” Shields said.

The 350-mile pipeline will carry natural gas liquids from the Marcellus Shale of southwestern Pennsylvania to an export terminal at Marcus Hook near Philadelphia. The $3 billion project is due for completion by the end of the third quarter.

Story written by: By Jon Hurdle and Susan Phillips | StateImpact Pennsylvania
Photo by: Emily Cohen / StateImpact PA
Photo Caption: Workers cleared trees to make way for the Mariner East 2 pipeline in Delaware County in March. The company has spilled at drilling mud in dozens of incidents.. DEP has issued four violations, and one fine.

By |August 9th, 2017|Categories: Eminent domain, Pipeline Construction, Property Rights, Uncategorized|