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.

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|

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|