SCOTUS: pipeline companies may take state property
The US Supreme Court ruled 5-4 on June 29 in PennEast Pipeline Co. v. New Jersey that the Natural Gas Act can grant private companies authority to take state-owned property to build a pipeline. Under the Natural Gas Act (NGA), a company seeking to build an interstate pipeline must obtain a certificate from the Federal Energy Regulatory Commission (FERC). This certificate authorizes the holder to exercise federal eminent domain in securing property for the pipeline.
PennEast Pipeline obtained a certificate to build a 116-mile gas pipeline from Pennsylvania to New Jersey and sought to exercise its federal eminent domain authority by taking public land in New Jersey. The state of New Jersey moved to dismiss the company's request on sovereign immunity grounds. A district court ruled in favor of PennEast Pipeline, but the Third Circuit Court of Appeals vacated the order.
In an opinion delivered by Chief Justice John Roberts, the Supreme Court reinstated the district court order in favor of PennEast Pipeline. The court held that the NGA can constitutionally grant pipeline companies authority to take state-owned property because states "surrendered their immunity from the exercise of the federal eminent domain power when they ratified the Constitution." The court also noted that the US has long asserted its eminent domain authority to take private property and state-owned property.
Justice Amy Coney Barret, joined by three other justices, wrote a dissenting opinion to remind the court that "Congress passed the Natural Gas Act in reliance on its power to regulate interstate commerce, and [the Supreme Court has] repeatedly held that the Commerce Clause does not permit Congress to strip the States of their sovereign immunity." Hence, Barret argued that the NGA cannot authorize certificate holders to take state-owned property.
PennEast Pipeline released a statement to express their satisfaction pleased with the decision. The statement said that "energy crises in recent years in California, Texas, and New England, have clearly demonstrated why interstate natural gas infrastructure is so vital for our way of life, public safety, and enabling clean energy goals."
New Jersey Attorney General Gurbir Grewal tweeted, "We're disappointed by today's SCOTUS ruling on the PennEast pipeline, but our fight is far from over. I'm proud to continue standing up for our residents & championing environmental protection. I urge the feds to take another look at this harmful proposal."
From Jurist, June 30. Used with permissiion.
Note: The PennEast pipeline would carry fracked Marcellus Shale natural gas from Luzerne County, PA, north of Wilkes-Barre, to the edge of Mercer County, NJ, near Trenton. The route would cross the Delaware River at a point within the Lower Delaware National Scenic & Recreational River protected area, administrated by the National Park System. (Sierra Club)
Expedited approval of Mountain Valley Pipeline
The debt ceiling deal hammered out by President Joe Biden and House Republicans includes provisions to speed final permitting of the long-delayed Mountain Valley Pipeline. The pipeline provision was directly linked to the efforts of Senate energy chair Joe Manchin (D-WV)
The Mountain Valley Pipeline is a proposed 300-mile interstate natural gas line that would cross nine West Virginia counties to transport gas to East Coast markets. The developers say they intend to bring the pipeline into service in the second half of 2023.
The $6.6 billion project first won authorization from the Federal Energy Regulatory Commission (FERC) in 2017, but its completion has been delayed by regulatory hurdles and court challenges.
"Changes to environmental laws and favors to fossil fuel companies have no place in a bill to raise the debt ceiling," said Chelsea Barnes, director of government affairs and strategy for Appalachian Voices, an environmental advocacy organization. "Congress should reject this legislation and pass a clean debt ceiling bill." (WV MetroNews)
Mountain Valley Pipeline halted amid legal wrangling
A federal court in Richmond has halted construction of the Mountain Valley Pipeline, setting off a battle with Congress that could end up at the Supreme Court.
The US Court of Appeals for the Fourth Circuit released a pair of rulings July 10 and 11 to stop work on the project, which is intended to carry natural gas about 300 miles from the Marcellus shale fields in West Virginia across nearly 1,000 streams and wetlands to a hub in Virginia.
That was notable because Congress had moved jurisdiction over the pipeline last month from the court in Richmond, where environmentalists have found some success in their decade-long fight, to the US Court of Appeals for the District of Columbia Circuit. The highly unusual provision was tucked into legislation to raise the debt ceiling.
Congress also included provisions to expedite construction of the pipeline and insulate it from judicial review. Those elements were added as a concession to Senator Joe Manchin III, the West Virginia Democrat.
But environmentalists, Democratic members of the Virginia congressional delegation, and some constitutional law experts argue that by directing a change in courts, Congress has violated the separation of powers clause in the Constitution. (NYT)
Mountain Valley Pipeline asks SCOTUS to allow construction
Mountain Valley Pipeline LLC asked Chief Justice John Roberts on July 14 to vacate the stays imposed by the US Court of Appeals for the Fourth Circuit, which are currently halting the construction of one of the last portions of a 303-mile natural gas pipeline. (Jurist)