N.J. files in federal court to stop PennEast from condemning protected land

Tom Johnson/NJ Spotlight

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Tom Johnson is the energy and environment reporter for NJ Spotlight. He is a journalist with more than 30 years of experience in reporting and editing at New Jersey newspapers. A veteran reporter for The Newark Star-Ledger, Johnson worked in the Statehouse and in Newark covering energy, environmental and telecommunications issues. Before that he served as editor of the Ridgewood Newspapers and a reporter and editor at the Herald-News. A recipient of many state and national journalism honors, including recognition by the U.S. Environmental Protection Agency for coverage of the environment, he was a member of the Star-Ledger’s nationally award-winning business section. After leaving the Ledger in early 2009, he served as press secretary to the Daggett Campaign for Governor. He lives in Plainfield, N.J. tjohnson@njspotlight.com

Emma Lee / WHYY

A sign on farmland in Palmerton shows local opposition to the PennEast pipleline. Some believe land under the Farmland Preservation program has been targeted for the route because of it's lower market value. (Emma Lee/WHYY)

March 25, 2018 | 7:34 AM

A sign on farmland near Palmerton in northeast Pennsylvania shows local opposition to the PennEast pipleline.Some believe land under the Farmland Preservation program has been targeted for the route because of it's lower market value. (Emma Lee/WHYY)

A sign on farmland near Palmerton in northeast Pennsylvania shows local opposition to the PennEast pipleline. In order to build the pipeline, PennEast Pipeline Co. is trying to seize through eminent domain some lands that are under farmland preservation. (Emma Lee/WHYY)” credit=”

New Jersey Attorney General Gurbir Grewal has filed a motion to block PennEast Pipeline Co. from condemning over 20 properties acquired under open-space and farmland preservation programs.

The New Jersey Conservation Foundation and Hunterdon Land Trust yesterday joined the state in asking a federal court to reject the company’s efforts to seize preserved land they own.

The litigation is the latest stumbling block for PennEast in its attempt to build a controversial, 116-mile natural-gas pipeline from Luzerne County, Pa., crossing the Delaware River and ending in Mercer County.

Making a case for eminent domain

In the case before the federal court, PennEast is asking for eminent-domain approval to acquire 62 properties it needs along the route of the pipeline, a $1 billion project that has sparked vehement opposition on both sides of the river.

PennEast is looking to seize 149 of the 211 properties in the path of the proposed pipeline in New Jersey — nearly 70 percent. About 50 percent are preserved lands, more than 20 of which the state owns in whole or in part.

Barred by private owners from surveying their land, the company needs to exercise condemnation proceedings to gain access to the properties to gather environmental information required by the New Jersey Department of Environmental Protection before it can review crucial water permits PennEast must obtain.

In a 46-page filing with the U.S. District Court in Trenton, the attorney general argued that the eminent-domain request should be rejected on grounds that the federal court does not have jurisdiction over the state and would cause irreparable harm to state-preserved parcels.

“That investment is now under threat of being undermined by PennEast, a private entity attempting to condemn the state’s interests in over twenty preserved parcels so they may construct a natural gas pipeline thereon,’’ according to the filing.

Jurisdiction over interstate pipelines

Pat Kornick, a spokeswoman for PennEast, said the company will dispute the state’s claims about the court’s jurisdiction.

“The Federal Energy Regulatory Commission has exclusive jurisdiction over interstate natural-gas pipelines, including the PennEast Pipeline, which has been found in the public interest; therefore, federal courts have jurisdiction to hear these matters,’’ Kornick said.

In addition, Kornick noted the company, in consultation with state environmental officials, aligned about half the route in New Jersey to follow existing rights of way (primarily overhead power lines), a decision that led the pipeline to cross many state-preserved properties. PennEast also is required to mitigate those parcels, she added.

Tom Gilbert, campaign director of the New Jersey Conservation Foundation, disputed that view.

“The attorney general stood on the side of New Jersey residents — and on the side of history — when it took action to protect more than twenty irreplaceable state lands that PennEast is trying to seize though eminent domain,’’ he said.

“The state didn’t preserve these open spaces and farmland with taxpayer support so a gas pipeline company could simply condemn them for their own private profits.’’

New Jersey has a long history of preserving open space and farmland, according to the state’s filing. It has approved two constitutional amendments dedicating portions of the sales and corporate business taxes for that purpose and has approved 13 Green Acres referendums, the filing said.

Damaging open space

If approved, PennEast’s pipeline would damage 4,300 acres of permanently preserved open space and farmland, according to the filing.

In the filing, the attorney general claims PennEast has failed to contact the state to acquire property it needs for the pipeline and has not provided any appraisals of the land it seeks to condemn.

The litigation follows up on a motion by Grewal last month, urging FERC to stay its earlier granting of a Certificate of Public Convenience and Necessity for the pipeline, and rehear the case.

In addition to the FERC certificate, the project still needs permits from a number of state and federal agencies, including the New Jersey DEP and the Delaware River Basin Commission, which has yet to begin its own permitting process.