In a 5-4 split, the U.S. Supreme Court ruled Tuesday the PennEast pipeline can proceed with seizing New Jersey-owned land the 116-mile project will cross. In arguments, attorneys representing the consortium of natural gas companies building the line said they would be “at the mercy of New Jersey” if they lost since there’s no way to re-route the path without the state’s involvement. Aside from opposing the pipeline taking its land, New Jersey has been hostile to the entire project.
“This is a landmark victory for energy infrastructure development – one that should deter local critics from trying to hijack projects of national importance,” said Pennsylvania Energy Infrastructure Alliance spokesman Kurt Knaus. “There is a clear public need for PennEast among businesses and consumers, especially in a region where pipeline capacity restraints make it difficult to get affordable gas to market. This decision ends opponents’ efforts to block this project and clears the way for this pipeline to move forward.”
PennEast aims to move more than 1 billion cubic feet of natural gas per day from the Marcellus Shale in Pennsylvania to Mercer County, N.J. In addition to crossing 40 state-owned parcels, the pipeline will cross the Delaware River, which inflamed opposition from environmental activists.
The Delaware Riverkeeper Network filed a lawsuit challenging approval from the Federal Energy Regulatory Commission, but that suit has been on hold as the federal case made its way through the courts. Riverkeepers CEO Maya van Rossum said the Supreme Court’s decision should release other legal actions that are being held abeyance.
“Today’s ruling will not be the final say for the PennEast Pipeline,” van Rossum said in a statement. “As we face the existential crisis of climate change, it is devastating that our highest court has chosen to embolden fossil fuel companies, empowering them to trample over the rights and obligation of our state governments to protect its natural resources for the benefit of its residents, communities and future generations. It is so disturbing that the profit-making goals of a private pipeline corporation would be given greater respect and protection than the rights of states and people.”
Myron Ebell, direct of the Center for Energy and Environment for the Competitive Enterprise Institute, however, wondered if environmental activists will have the same opposition to seizing private and state-owned land for the high voltage transmission lines that are needed for wind and solar projects. Those lines will require easements through private property to build a network capable of the scale that proponents are counting on. Up to $8.25 billion is available from the U.S. Department of Energy for transmission line developers with nearly half of the funds coming from the Western Area Power Administration’s Transmission Infrastructure Program
“The power of eminent domain needs to be used properly and carefully,” said Ebell, who grew up on a ranch in Oregon that was subject to several easements to create rights-of-ways for various projects. “It has to be for a legitimate use, and pipelines are a legitimate public use.”
Currently, 84,000 miles of pipelines transport crude oil from major production areas in the United States to 135 refineries, and 63,000 miles of pipelines deliver gasoline, diesel and jet fuel from refineries to local distribution areas, according to the Association of Oil Pipe Lines. About 300,000 miles of natural gas pipelines similarly deliver that product for millions of consumers, according to the Interstate Natural Gas Association of America.
“Many people are unaware of the presence of this large pipeline network that is operating safely and reliably underground,” the natural gas association pipeline says on its website.
PennEast, like other oil and natural gas pipeline projects introduced over the last few years, ran into considerable opposition from well-organized activists from its start.
A group called Delaware Township Citizens Against the Pipeline said on its website the project “targets our open space, preserved farmland and preserved agriculture farmland because it’s financially cheaper and easier.” The New Jersey Department of Environmental Protection rejected a water quality permit in June 2017, but the company said it planned to provide supplemental material to its application to answer the agency’s concerns. FERC approval came in 2020, and the ruling from the agency – another 2-1 split decision – noted the Third Circuit Court of Appeals decision that ruled in favor of New Jersey threatened the natural gas industry’s ability to build interstate pipelines.
That set the stage for the Supreme Court.
Justice Stephen Breyer, who is already being targeted by activists who want him to retire so President Joe Biden can appoint a justice who they hope will be friendlier to progressive causes, said the Natural Gas Act of 1938 gave companies the power of eminent domain because of state objections to pipeline construction.
The ruling is a welcome one for the pipeline industry, which has been subjected to regulatory uncertainty dependent on presidential administrations and the whims of governors and other elected and non-elected officials who side with environmental activists. New York and New Jersey have been hostile to pipelines, and one of Biden’s first executive orders was to cancel permits for the Keystone XL pipeline. TC Energy, the Calgary-based group developing Keystone, announced recently it was ending the project.
“Today’s decision ensures an ongoing precedent for regulatory certainty and future development,” said Craig Stevens, spokesman for Grow America’s Infrastructure Now, a coalition of industry, trade association, and trades unions that support pipeline projects. “From railroads and highways to pipelines and transmission lines, the ability to invoke eminent domain after receiving all approvals is key to successfully building any large-scale infrastructure project. With a renewed focus on our nation’s crumbling infrastructure, the private sector is poised to play a prominent role in its modernization, development, and continued investment.”
