Emma Lee / WHYY
Frenchtown residents protest the PennEast Pipeline.
On Sept. 27, 2021, PennEast Pipeline Co. ended its plan to build a pipeline that would have carried Marcellus Shale gas 116 miles from Luzerne County, Pa., crossing the Delaware River and ending in Mercer County, N.J.
That decision came less than a week after it halted a controversial plan to take some New Jersey public lands for the project.
A U.S. Supreme Court decision in June 2021 gave it the right to take the lands. But the company said in September 2021 that it would not pursue eminent-domain claims on 42 parcels of publicly owned land.
In a statement announcing the end of the PennEast pipeline, the company said it had been unable to get necessary permits from New Jersey, so “the PennEast partners, following extensive evaluation and discussion, recently determined further development of the Project no longer is supported.”
Environmental groups had argued the $1 billion project would endanger natural habitat, disturb open space, and risk damaging waterways. Many landowners along the proposed path refused to lease their land or grant the company the right to survey property.
The company argued the line would bring needed natural gas to New Jersey and would benefit ratepayers by supplying cheaper fuel. A company spokesperson said it had re-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. The company said it was committed to mitigating any property damage caused by construction, which it had planned to begin in 2018.
In January 2018, the Federal Energy Regulatory Commission granted the PennEast Pipeline Co. a “certificate of public convenience and necessity” to build the pipeline, which allowed it to take land through eminent domain. FERC said the company had obtained commitments from 12 named customers to buy about 90 percent of the natural gas that would have been carried by the line.
It rejected arguments by opponents including the New Jersey Rate Counsel, an advocate for utility ratepayers, which said there was no need for the line.
PennEast had been looking to seize 149 of the 211 properties in the path of the proposed pipeline in New Jersey — nearly 70 percent. About half of the properties are preserved lands, and more than 20 are parcels the state owns in whole or in part.
About two-thirds of the route was in Pennsylvania, where state environmental regulators preliminarily approved water permits in February 2017. The PA DEP had yet to issue the Chapter 102 and 105 permits.
New Jersey refused to grant the necessary permits to cross waterways. The state said it spent about $1 billion to acquire and control the parcels for open space and to preserve the land for recreation, conservation and agriculture, and that it should not be used to ship natural gas.
In 2018, New Jersey Attorney General Gurbir Grewal sued to block PennEast from condemning more than 20 properties the state acquired through open-space and farmland preservation programs. Both the New Jersey Conservation Foundation and Hunterdon Land Trust joined the state in asking a federal court to reject the company’s efforts to seize preserved land they own.
The case made its way to the U.S. Supreme Court, which sided with the pipeline company in a 5-4 decision in June 2021. The ruling reversed a 2019 decision by the Third Circuit Court of Appeals that held New Jersey could block construction on state-controlled conservation land. PennEast Pipeline board chair Anthony Cox said the Supreme Court’s decision upheld seven decades of legal precedent based on the Natural Gas Act.
The Department of Justice under both former President Trump and current President Biden sided with PennEast.
Opponents said the decision trampled on states’ rights and ran counter to the state’s and the nation’s climate goals by locking in another fossil fuel infrastructure project that will encourage more fracking for natural gas in Pennsylvania. Grewal said he was disappointed by the ruling but vowed to continue to fight the project.
Despite that court victory, the pipeline needed permits from the Delaware River Basin Commission and the U.S. Army Corps of Engineers, which said in an April 21, 2017 letter that it needed the company to supply more information including the delineation of waterways, and cultural resource surveys in order to process its application.
The company said the lack of needed permits from New Jersey made it determine that “further development of the Project no longer is supported.”
An agreement with the New Jersey Attorney General’s office means PennEast won’t take the lands to build the pipeline, even though the U.S. Supreme Court ruled it could use eminent domain to acquire the state land for the project.
The ruling reverses a the Third Circuit Court of Appeals decision that held New Jersey could block construction on conservation land. Industry praised the decision; PennEast opponents vowed to continue their fight.
New Jersey wants to block the project, saying the constitution bars the private company from seizing state-controlled land through eminent domain.
PennEast wants the Supreme Court to overturn a federal appeals court ruling preventing the company from exercising eminent domain on NJ state lands.
By
Susan Phillips 
A federal judge rejected arguments that approval for the pipeline isn’t final. The ruling affects the properties of about 150 landowners.
