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Major setback seen as court of appeals denies pipeline eminent domain rehearing


The proposed $1 billion PennEast Pipeline hit another snag last week as the Third Circuit Court of Appeals denied a rehearing on its September ruling denying PennEast the right to eminent domain on state-owned lands.

The September ruling prevents PennEast from taking public lands to build its pipeline without the consent of the state of New Jersey due to its sovereign immunity as stated by the 11th Amendment to the Constitution.

“This decision will make it harder for the PennEast pipeline to get approved,” Jeff Tittel, director of the New Jersey Sierra Club, said. “Each time they have a setback, it makes it more likely that we can prevail in stopping this disastrous fossil fuel project.”

The court ruling means that PennEast does not have the legal authority to seize more than 40 parcels of land owned by the state designated as open space in conjunction with counties, municipalities and private land trusts. The ruling does not affect the private land in which the state has no interest.

An attorney representing homeowners who are fighting PennEast said the court ruling is “another major setback” for the pipeline company since it ends the Third Circuit appeal process.

“PennEast can file a petition asking the U.S. Supreme Court to take the case and review the decision,” Timothy P. Duggan, an attorney with Stark and Stark of Princeton, N.J., said.

Duggan thinks the chances of the Supreme Court taking the case are slim since they only hear about “1 to 2 percent” of cases per year.

PennEast officials have said they are evaluating their options as a result of the most recent denial on Nov. 5 and “remain fully committed” to building the natural gas pipeline.

Michael J. Renna, president, CEO and director of South Jersey Industries (SJI), a partner in the project, said their legal strategy is still under review and it is possible that the pipeline might not be in service by the end of 2020. Renna made those comments in a Nov. 7, SJI earnings conference call, of which a transcript was published by Yahoo Finance.

“I think it’s fair to say that the project is going to be delayed and it’s – we’re not going to be in service by the end of 2020.”

The court’s latest ruling, signed by Circuit Judge Kent A. Jordan, against PennEast was brief.

“The petition for rehearing filed by [PennEast] having been submitted to the judges who participated in the decision to this court and to all of the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for a rehearing, and a majority of judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court en banc, is denied.” (The word “denied” appears in capital letters.)

“Even though we won another battle against PennEast, they are not going away and will keep coming back,” Tittel said. “They have already applied to FERC to get eminent domain and will look to the Trump Administration to change the rules to get it.”

Lambertville officials have planned an update on the PennEast Pipeline for city residents at 7 p.m. Monday, Nov. 18, at the Justice Center at 25 S. Union St. Speakers will provide an update on recent developments regarding the proposed pipeline and those affected by it.