AG’s Motion Anticipates Possible Legal Challenge over PennEast Pipeline

Jon Hurdle | February 20, 2018 | Energy & Environment
Attorney general argues FERC certificate flawed because it allows PennEast to seek eminent domain without knowing environmental impact over much of route

Credit: State Impact PA-NPR
New Jersey is opening the way for a possible legal challenge to federal approval of the controversial PennEast natural gas pipeline that would take almost 150 parcels of private land in the Garden State.

State Attorney General Gurbir Grewal urged the Federal Energy Regulatory Commission to stay its recent “Certificate of Public Convenience and Necessity” for the pipeline, and hold a rehearing on the case.

In a five-page motion filed with FERC on February 16, Grewal said the certificate was flawed because it allows the company to seek private lands and some parcels of state-protected land through the eminent domain process, even though it does not know about the project’s environmental impact on some two-thirds of the route because many landowners have refused access to land surveyors.

Rerouting necessary?

Without all the needed environmental information, the company cannot know whether the pipeline may have to be rerouted, and whether it actually needs to condemn the parcels it is now seeking in federal court, the motion said.

“Enabling PennEast to condemn perpetual easements before knowing whether the route must be shifted to avoid environmental impacts undoes the preserved nature of the land even if the pipeline will never ultimately cross that land due to route changes,” said the document, filed on behalf of the Department of Environmental Protection and the Delaware and Raritan Canal Commission.

The AG criticized the FERC certificate for allowing PennEast to mitigate any environmental damage rather than minimizing or avoiding it. Allowing for mitigation would violate the federal Clean Water Act, which allows mitigation only if it has shown it has first tried to avoid impacts to streams and wetlands, the motion said.

“FERC’s misunderstanding that impacts can be mitigated away not only threatens precious environmental resources but also would leave PennEast in the position of having condemned properties which may not qualify for permits under the Clean Water Act,” it said.

Filing eminent domain

FERC’s certificate, issued on January 19, allowed PennEast to file eminent domain suits against 130 New Jersey landowners in U.S. district court, a process it started on February 6. The landowners, many of whom own parcels in Hunterdon County, have refused the company’s offers of compensation for taking part of their lands to build the pipeline, and are now preparing to fight the suits in court.

Critics of the pipeline said the motion appears to be the first ever by a New Jersey governor to seek a rehearing on a FERC order.

“It’s important that New Jersey is standing up for its people and environment by issuing this rehearing request with FERC,” said Jeff Tittel, director of the New Jersey Sierra Club.

But the action is not expected to lead to a reconsideration by FERC, which approves virtually all gas pipeline applications, and is called by its critics a “rubber stamp” for the natural gas industry.

Instead, the AG’s action would allow New Jersey to sue FERC over the certificate, opponents said. “It’s important because it allows us to challenge the pipeline at a legal level,” Tittel said.

Jennifer Danis, an attorney with the Eastern Environmental Law Center, which represents the New Jersey Conservation Foundation in the PennEast case, predicted that FERC will delay its response to the AG’s motion for about six months and then summarily dismiss it.

Although FERC is legally required to respond within 30 days, it typically uses a mechanism called a “tolling order” to evade the 30-day requirement, as it has done for virtually every other rehearing request over the last eight years, Danis said.

“Given the significant concerns New Jersey has voiced, I would hope that FERC would not use its contrived tolling order mechanism, and abide by its 30-day statutory response time,” she said.
On February 2, the AG rejected PennEast’s offers of compensation for several parcels of protected land in Hunterdon County, saying the company had not given the state enough time to evaluate its offers, and had not explained how it arrived at the specific sums proposed.

PennEast spokeswoman Pat Kornick said the AG’s new motion should be denied because FERC has already considered the issues raised.

But she welcomed the AG’s recognition of the importance of land-survey data, saying that PennEast is still trying to obtain that from some landowners.
“It is the survey data, which is being requested by PennEast and collected by survey teams, that is necessary before a FERC order can even allow construction,” she wrote in an email. “PennEast looks forward to a transparent process and working collaboratively with NJDEP.”

Tamara Young-Allen, a spokeswoman for FERC, did not immediately respond to a request for comment.

In addition to the FERC certificate, the project still needs permits from a number of state and federal agencies including the New Jersey DEP, which recently issued its latest rejection of PennEast’s application for a wetlands permit, and the Delaware River Basin Commission, which has yet to begin its own permitting process.

If constructed, the $1 billion pipeline would carry natural gas from the Marcellus Shale in Luzerne County, PA about 120 miles to Mercer County.