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PennEast plans appeal to U.S. Supreme Court

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The PennEast Pipeline will ask the U.S. Supreme Court to review a lower court ruling that denied the company the right to seize state-owned public land.

“This is a shameful move by PennEast, but it was not unexpected. PennEast is trying to do whatever they can to push this damaging and unneeded pipeline through,” said Jeff Tittel, director of the New Jersey Sierra Club.

The Third Circuit Court of Appeals ruled in September that PennEast’s condemnation suits against the state in federal court are barred by the 11th Amendment, which gives states sovereign immunity from suits by private parties in federal court.

“The PennEast partner companies are fully committed to the project and will be seeking review by the U.S. Supreme Court,” Anthony Cox, chairman of the PennEast Pipeline Company Board of Managers, said in a pipeline company statement announcing its Supreme Court request.

PennEast plans to file with the Supreme Court by its deadline in early February.

Earlier this month, the Third Circuit upheld its previous decision that would block the company from using eminent domain for state land, after the pipeline company requested the federal court’s decision be revisited. Privately owned land was unaffected by the ruling and is still subject to condemnation suits through eminent domain.

PennEast officials say the Third Circuit ruling “has implications far beyond the PennEast project.” They say interstate pipelines “of any significant length” can’t be built “without crossing land where a state claims an interest,” according to the statement. “State governments, just like other landowners, should not be allowed to disrupt or veto vital energy infrastructure.”

Cox said the Federal Energy Regulatory Commission (FERC) approved the current pipeline route “fully understanding” that it uses land that New Jersey claims an interest in.

“Based on the law, we don’t believe the Supreme Court should pick up this case, however given [President Donald] Trump’s appointments to the court, who knows.” Tittel said.

If the Supreme Court rules against PennEast or declines to hear the case, pipeline company officials might lobby Congress to rewrite the Natural Gas Act to allow condemnation of state-owned lands, or reconfigure the proposed pipeline route around state lands.

PennEast officials still forecast that pipeline construction could begin in 2020.


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