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February 24, 2020

PennEast Will Challenge New Jersey’s Opposition To Pipeline

According to the Energy Equipment and Infrastructure Alliance (EEIA), which the Metals Service Center Institute is a member of, the Supreme Court soon will be asked to consider a case involving the PennEast Pipeline and eminent domain and the case could “have important impacts on future greenfield pipeline projects.”

PennEast is a proposed natural gas pipeline project running from the northeastern Pennsylvania Marcellus gas fields south to southern New Jersey, about 116 miles split roughly evenly between Pennsylvania and New Jersey and crossing the Delaware River in northern Bucks County.

The Federal Energy Regulatory Commission approved the project in January 2018. The State of New Jersey, which holds ownership or easement interests in portions of the proposed right of way, and whose administration has been openly opposed to the project, refused PennEast access to state-owned properties for required right of way survey and planning work.

PennEast filed eminent domain to gain access and the state sued in Federal court, claiming that the U.S. Constitution 11th Amendment’s “sovereign immunity” clause precludes private entities from taking a state to court. Ultimately the U.S. Third Circuit Court of Appeals upheld the state’s claim of immunity, thus defeating the pipeline’s eminent domain actions against its lands.

An appeal is headed to the U.S. Supreme Court. PennEast notified the high court that it will file a petition prior to a March 4 deadline asking the nation’s highest court to review the 3rd Circuit’s opinion. If the Supreme Court accepts the case, arguments would be heard somewhat later and a decision would come before the Court adjourns in early October.