Judge Weighs Other Courts’ Pro-Pipeline Rulings Before PennEast Decision

Pipeline foes say last-minute request for comments signals court will allow surveying on private land

Credit: Susan Phillips/StateImpact Pennsylvania
PennEast pipeline
Will U.S. District Judge Brian Martinotti finally allow PennEast onto multiple parcels of private land to survey for its controversial natural gas pipeline project?

More than seven months after hearing arguments in his Trenton courtroom over whether to allow the company to use eminent domain to build the pipeline on the properties of uncooperative New Jersey landowners, the judge is expected to rule soon on the hotly contested issue.

In a recent note to attorneys, the judge said he had planned to issue the long-awaited decision last Friday, November 2, but put it off to allow a bit more time for the parties to respond to two recent pro-pipeline decisions by other judges that could influence his decision.

He cited a ruling by the Third Circuit Court of Appeals that upheld the right of another pipeline company, Transco, to take, or “condemn” private land to build its Atlantic Sunrise pipeline through Pennsylvania and states to the south.

Inviting comments

And he invited attorneys to comment on the ruling by another New Jersey federal judge, Freda Wolfson, who rejected arguments by the New Jersey Conservation Foundation that a federal permit allowing the eminent domain process to begin was unconstitutional.

“In light of the third circuit opinion and Judge Wolfson’s opinion, both of which may impact my decision, I will (reluctantly) permit counsel to supplement the record, with a memorandum of law, not more than five (5) pages, commenting on the impact, if any, these decisions have on the issue(s) pending before me,” Judge Martinotti wrote, setting a deadline of last Friday.

Jeff Tittel, director of the New Jersey Sierra Club, said the judge’s request for comments on the NJCF case suggests that PennEast will shortly be allowed onto private land to begin survey work.

“What this court case says is that now the real battle begins, and getting Gov. Murphy to keep his commitments to stop PennEast at the DEP,” Tittel said.

Going same way as other ruling

He argued that Martinotti’s note to attorneys about the other rulings signals that his own will go the same way.

“His statement was not nice,” Tittel said. “He’s basically saying to critics ‘you lost this case, now do you have anything else to add?’”

The note prompted last-minute briefs from attorneys for PennEast, the State of New Jersey, and some of the approximately 130 private landowners that have been served with eminent domain suits.

State Attorney General Gurbir Grewal, in his latest opposition to the project, urged Judge Martinotti to reject the company’s request for an injunction that would allow it to take state and private land. Grewal argued that the Third Circuit ruling had confirmed a multistep process that a pipeline company must complete under federal law before obtaining the right to “condemn” land, and that PennEast had not met that requirement.

He said PennEast has not settled whether the properties it seeks to condemn are within the route approved by FERC, and whether it properly negotiated with residents over access to their land.

A constitutional question

“This nation’s constitutional framework simply forbids a private entity from condemning a non-consenting state’s property rights,” Grewal said.

In February, Grewal rejected PennEast’s offers of compensation for building the pipeline on several parcels of preserved public land in Hunterdon County — where most of the parcels of private land that would be subject to eminent domain are also located.

In their own briefs, attorneys for PennEast said Judge Wolfson correctly ruled that her court lacked jurisdiction to rule on the NJCF’s suit, and that only the U.S. appeals courts can hear such challenges.
And they said the Third Circuit was right to uphold a lower court’s ruling that PennEast has a “substantive right” to eminent domain after satisfying the requirements of the federal Natural Gas act.

But Tim Duggan, an attorney who represents about 40 private landowners plus five nonprofits, three towns, and one county who oppose the pipeline, argued that Judge Wolfson’s court could indeed have heard the NJCF case.

“The court has clear jurisdiction to hear the myriad defenses against PennEast’s condemnation complaint,” Duggan said in his response to Judge Martinotti’s note.

If built, the $1 billion pipeline would carry natural gas from the Marcellus Shale of northeastern Pennsylvania about 120 miles to Mercer County. The company says the new supply would mean lower gas prices for consumers, and that it plans to start construction in 2019. Opponents including the New Jersey Rate Counsel, an advocate for utility ratepayers, say that New Jersey has sufficient natural gas supply, and that PennEast is not needed.

PennEast’s opposition

The plan has roused strong opposition in many communities where the pipeline would run.

Mike Spille, a resident of West Amwell Township in Hunterdon County, and the founder of West Amwell Citizens Against the Pipeline, said Judge Martinotti’s request for responses to the two other court rulings in favor of pipeline development suggests that he will at least allow PennEast on to private land so that it can conduct required surveys on issues including wetlands and endangered species.

“In my mind, he is almost certainly going to allow some sort of access based on precedent,” said Spille, whose property is not subject to eminent domain because it is not directly on the pipeline route but whose fence is 50 feet away from it.

When it has survey data, PennEast will be in a position to reapply to the Department of Environmental Protection for water-quality permits that were previously denied on the grounds of incomplete information.

The DEP will then come under renewed pressure from critics to reject the project, which also needs permits from the Delaware River Basin Commission.