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Pennsylvania Eminent Domain Blog

Further Challenge To PennEast Pipeline

February 21st, 2018 | by Mike Faherty

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

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

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

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

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

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

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

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

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

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

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

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

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

Written by: Kyle Bagenstose | The Intelligencer