FLEMINGTON, NJ – A court ruling against the proposed PennEast Pipeline is the “the first big setback” against the company plan, an attorney representing the County told the Hunterdon Freeholder board at its meeting this week.
“We believe this is a big victory,” said Timothy Duggan of the Lawrenceville-based Stark and Stark law firm.
The suit opposes PennEast’s effort to condemn state-owned properties. The Federal Appeals Court ruling found that Penn East cannot sue the state of New Jersey in federal court, he said, which means the state is now dismissed from 43 cases. Hunterdon County is part of about 20 of those cases.
The Freeholders have long opposed the PennEast plan, which seeks to condemn not only state-owned properties, but seeks access to private properties where both public and private funds have been used to acquire the development rights to ensure preservation of the properties.
“The Freeholder Board has continued to have deep concerns about the abuse of eminent domain and its effect on preserved farmland and open space,” said Freeholder Director Suzanne Lagay.
Hunterdon has partnered with the state Agriculture Development Committee in the funding for the preservation of numerous farms targeted by PennEast for taking by eminent domain. Those properties are among the cases dismissed.
On Sept. 10, The Federal Appeals Court Third Circuit held that while the National Gas Act (NGA) delegates the federal government’s power of eminent domain to private gas companies, it does not necessarily delegate the federal government’s exemption from state sovereign immunity. As a result, private entities such as PennEast, acting under the NGA, cannot condemn state-owned property, the court said.
Duggan, who lives in Lambertville, said the ruling puts the project in jeopardy of getting approval from the state Department of Environmental Protection.
“It puts the pipeline in a bad situation, jeopardizing the entire pipeline project,” he said. “It’s the first big setback that they’ve had, other than the delays.”
While PennEast may try to reroute the proposed pipeline, “We don’t think that’s going to work,” he said. He also doubted whether the matter would warrant review by the Supreme Court. “The Third Circuit ruling is a really solid decision,” he said.
New Jersey’s appeal argued that plan violated the state’s right to sovereign immunity under the Eleventh Amendment. The Third Circuit found the issue of sovereign immunity concerning, given the fact that private parties’ incentives for condemning land might overshadow what the court called “the duty to take care that the laws be faithfully executed.”