By Jon Hurdle, NJ Spotlight
The PennEast Pipeline Co. would drop its plans to build a natural-gas pipeline through New Jersey, or substantially alter them if it loses a current appeal before the U.S. Supreme Court, a lawyer for the company told the court on Wednesday.
Paul Clement was asked by Justice Brett Kavanaugh about what would happen if the high court rules against PennEast in its review of a lower court ruling that the company does not have the right to sue the state to take 49 parcels of public land by eminent domain for construction of the pipeline.
“If we lose this case, this pipeline will not be built, at least at anything like its current configuration, and depending on exactly how we lose this case, I think this pipeline, this federal interstate pipeline, will be at the mercy of New Jersey because I don’t think there is a way to reroute this pipeline in a way that doesn’t implicate a state interest in land,” he said, during oral arguments.
PennEast acting on behalf of FERC?
Clement denied, under questioning by Justice Elena Kagan, that the company’s efforts to take the land represent a private company suing the state — which New Jersey argues is unconstitutional — but is in fact the company acting on the Federal Energy Regulatory Commission’s approval of its plans.
“FERC approved the pipeline route, hearing objections and over 70 route modifications were made,” he said. “That was all done under the auspices of the federal government.”
Related environmental news stories:
Controversial $1 billion PennEast pipeline case heard by U.S. Supreme Court
SCOTUS hears arguments in eminent domain case involving PennEast
Opinion: Pa. should reject destructive PennEast pipeline project for good
PennEast pipeline pushers are digging in
PennEast is asking the high court to overturn the adverse ruling by the Third Circuit Court of Appeals in 2019, in what may be its final attempt to salvage a $1 billion project that would pump natural gas from Pennsylvania about 120 miles to a terminal in Mercer County. The project has been beset by delays, denial of permits by New Jersey environmental officials and fierce public opposition in some of the New Jersey communities where the pipeline would run.
The company has said it will build the Pennsylvania section of the route first, and then add the New Jersey stretch by 2023.
‘Junior varsity’ eminent domain
Clement said New Jersey’s claim of sovereign immunity from being sued by the company amounted to the federal government’s eminent domain power being reduced to “junior varsity” level. “Where the federal eminent domain authority exists, it is complete, and there can be no sovereign-immunity defense to its implementation,” he said.
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