Source: United States House of Representatives – Congressman Malinowski (NJ-7)
(Somerville, NJ) Today, Representatives Tom Malinowski (NJ-7) and Bonnie Watson Coleman (NJ-12) sent a letter to the Federal Energy Regulatory Commission (FERC) requesting it immediately issue a stop work order for all of PennEast’s land-clearing and construction-related activities.
This request is in response to the decision made by the U.S. Third Circuit Court of Appeals on September 10, 2019, which barred the PennEast Pipeline Company, LLC from utilizing eminent domain authority to seize land owned and protected by the State of New Jersey. The Third Circuit’s decision has left PennEast’s proposed route uncertain. As a result, the letter urges a halt in activity until necessary route changes are identified, and PennEast submits the new proposed route to FERC for environmental review, notice and comment, and a determination of whether the project is in the public interest.
“The Third Circuit’s decision to block PennEast’s attempt to condemn New Jersey’s state-owned lands was welcome news to our community, and I urge FERC to order PennEast to cease activity immediately,” said Congressman Malinowski. “We must continue to do everything in our power to stop this unnecessary pipeline from being built.”
“I was relieved by the Courts decision to stop PennEast from continuing this unnecessary and potentially dangerous pipeline. The streams and aquifers in the path of this pipeline provide drinking water to thousands of residents. The land in the path of this pipeline is some of the most beautiful in our state. You can’t replace 100-year-old trees once they’re gone. FERC should now put an immediate halt on all further land-clearing and construction,” said Congresswoman Watson Coleman.
Please find below and here the full text of the letter.
Dear Director Turpin,
On September 10, 2019, the United States Court of Appeals for the Third Circuit issued a decision barring the PennEast Pipeline Company, LLC (PennEast) from utilizing federal eminent domain authority to seize land owned and protected by the State of New Jersey, such as Milford Bluffs and Baldplate Mountain Preserve, along PennEast’s certificated pipeline route. The Court stated that the Natural Gas Act (NGA) “does not permit suits by private parties in federal court…[and] PennEast’s condemnation suits are thus barred by the State’s Eleventh Amendment immunity.”
In light of the Court’s recent decision, we request the Federal Energy Regulatory Commission (FERC) immediately issue a stop work order for all of PennEast’s land-clearing and construction-related activities. We do so for two related reasons.
First, PennEast’s proposed route is now uncertain. The January 19, 2018 Certificate Order authorized the construction and operation of a new 116-mile natural gas pipeline from Luzerne County, Pennsylvania, through Hunterdon County, New Jersey, to Mercer County, New Jersey. This pipeline route is now problematic considering PennEast can no longer seek the condemnation of approximately 40 properties owned and protected by the State of New Jersey. Therefore, PennEast will need to make substantial revisions to the route authorized in the Certificate Order in order to avoid the New Jersey State lands located in Hunterdon and Mercer Counties.
Any route changes will likely implicate private land adjacent to the land owned by the State. Therefore, FERC should halt all land-clearing and construction activities to ensure eminent domain is not used against private citizens unnecessarily. In the event that the current route is deemed no longer valid and PennEast has to make substantial revisions to its connecting segments, we do not want landowners and surrounding communities to be subjected to tree-clearing and loss of property for a pipeline that can no longer be built along the FERC authorized route.
Second, the National Environmental Policy Act (NEPA) requires all federal agencies to consider potential impacts of an action (e.g. granting a pipeline certificate and approving a specific pipeline route). FERC is designated as the lead agency for coordinating NEPA compliance and “all applicable Federal authorizations” in reviewing pipeline applications. While FERC did an environmental impact statement for the PennEast Project, the proposed route may no longer be valid, and any alternative or significant route variation would require a supplemental NEPA review, an amended FERC certificate, and potentially, new environmental conditions subsequent. Additionally, FERC would have to provide for notice and comment of any proposed route changes.
For these reasons, we request the Commission issue a stop work order to halt all land-clearing and construction-related activities on the PennEast Project until necessary route changes are identified, and PennEast submits the new proposed route to FERC for environmental review, notice and comment, and a determination under Section 7 of the NGA of whether the project is in the public interest.
Thank you for your attention to this matter.
Tom Malinowski Bonnie Watson Coleman
Member of Congress Member of Congress