A federal appeals court ruled last week that PennEast cannot use eminent domain to condemn New Jersey state-owned public lands to build its natural gas pipeline.
The U.S. Court of Appeals for the Third Circuit ruled Sept. 10 that PennEast’s condemnation suits against the state in federal court are barred under the 11th Amendment to the Constitution. Under the amendment, states have sovereign immunity from suits by private parties in federal court.
“We will not hesitate to stand up to private companies when their actions violate the law – or, in this case, the U.S. Constitution,” New Jersey Attorney General Gurbir S. Grewal said in a statement announcing the ruling.
“From the very beginning, we have made clear that the 11th Amendment prohibits private pipeline companies like PennEast from condemning state properties for private use, and we’re pleased that the Third Circuit agreed with our position. This is great news for New Jersey and the environment.”
When asked, PennEast officials would not say how the ruling affects the proposed pipeline. The company “remains committed to moving forward with the PennEast Pipeline Project to provide New Jersey and Pennsylvania residents and businesses increased access to clean, affordable natural gas,” PennEast spokesperson Patricia Kornick said in a statement.
“PennEast will review in detail the Third Circuit Court’s opinion and determine [the] next steps,” she said.
Attorneys for the pipeline company argued that it had the right to seize public land under the Federal Natural Gas Act just as it had the right to condemn private land.
The decision reverses an earlier district court ruling that had allowed PennEast to condemn approximately 40 parcels “previously and permanently preserved for recreational, conservation and/or agricultural uses through state tax dollars,” according to the New Jersey Attorney General.
Environmentalists were also pleased with the ruling.
“This is a giant win for the environment and a victory in a battle to stop the PennEast Pipeline,” Jeff Tittel, director of the New Jersey Sierra Club, said in a statement.
PennEast has received federal approval, but has not yet been able to get final approval from the New Jersey State Department of Environmental Protection, which earlier this month found PennEast’s permit application to be incomplete for a second time. The company has 30 days from the announcement to rectify the omissions in its application.
“PennEast will move swiftly to provide the supplemental data the NJDEP believes it needs to begin its thorough review of the 24,000-page application,” Kornick said.
Although PennEast officials did not answer questions about what the ruling means moving forward, Tittel said their fight is far from over.
“PennEast may try to reroute their pipeline around public lands or on the Pennsylvania side,” he said. “We have to keep fighting. It will be remanded back to lower courts, the Trump Administration could find a way to have the federal government condemn the land or PennEast can appeal to the Supreme Court.”
State agencies also part of the lawsuit were the New Jersey Department of Environmental Protection, the State Agriculture Development Committee, the Delaware and Raritan Canal Commission, the New Jersey Water Supply Authority, the New Jersey Department of Transportation, the New Jersey Department of the Treasury and the New Jersey Motor Vehicle Commission.
PennEast publicized its plan in 2014 to build its 120-mile pipeline from the fracking region of the Marcellus Shale formation in Luzerne County and southeastward across the Delaware River through to Hunterdon and Mercer counties in New Jersey.
A celebratory rally by critics of the proposed pipeline, including the N.J. Sierra Club and the Delaware Riverkeeper Network, was held at Cavallo Park in Lambertville, N.J., last Sunday to mark five years of their fight.
“Today is a great day for the environment, but we are not done yet,” Tittel said. “We need to keep fighting. The state needs to put a moratorium on new fossil fuel projects to give us more time, the DEP needs to fix their rules that make it easier to build pipelines, and [NJ Gov. Phil Murphy] needs to put pressure on the DEP to reject their 401 Water Quality Certificate.”
