Federal Appeals Court strikes Blow to PennEast Pipeline Project

• A federal appeals court has blocked PennEast Pipeline from condemning state-owned land for its proposed 116-mile long line that would ship Marcellus Shale gas from northeast Pennsylvania to New Jersey.
• A three-judge panel of the Third Circuit Court of Appeals reversed a lower court’s decision, saying that condemning public land violates the 11th Amendment of the Constitution.
• PennEast wants to build part of its natural gas pipeline through 44 state-controlled parcels of land in New Jersey. The Federal Energy Regulatory Commission had granted the company eminent domain authority, which it can use to seize land from uncooperative property owners.

However, New Jersey Attorney General Gurbir Grewal said the state-owned properties are open space preserved for recreation, conservation, and agriculture and should not be used to ship natural gas. Grewal argued the 11th Amendment grants states immunity from eminent domain takings by private entities.

The project has gotten approvals by Pennsylvania officials but has met much greater opposition in New Jersey.

PennEast argued the federal Natural Gas Act allows it to condemn property along the pipeline route. A spokesperson for the company says it is reviewing the decision and considering its next steps.

The more than 40 properties at issue in the case include public state-owned land as well as private land with conservation easements. The project would cross dozens of waterways and wetlands, as well as the main stem of the Delaware River. PennEast says it will minimize impacts to waterways by drilling beneath streams where possible and restoring streambeds after construction is completed.

A decision by the Third Circuit could have some influence in other pipeline battles across the country, but it does not carry the weight of a Supreme Court decision.