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Supreme Court: PennEast can take NJ land for gas pipeline

The Supreme Court determined today, June 29, that the PennEast Pipeline Co. can take land in New Jersey by eminent domain to build a natural gas pipeline in the Delaware River Basin.

The ruling overturns a lower appellate court decision in September 2019 that sided with the state of New Jersey.

The Supreme Court started hearing arguments in the case in April, with PennEast arguing that if the state were allowed to ban the project from NJ soil, it would kill the project. Argued attorney Paul Clement: “This pipeline has to cross the Delaware River somewhere, and half of the Delaware River belongs to New Jersey. So there’s just no way for this pipeline to exist under the current law.”

The Basin is an ecologically sensitive area that provides drinking water to thousands of residents in the area. The 116-mile pipeline, meanwhile, would ship natural gas from Pennsylvania’s Marcellus Shale field to a facility in Mercer County.

“As we face the existential crisis of climate change, it is devastating that our highest Court has chosen to embolden fossil fuel companies, empowering them to trample over the rights and obligation of our state governments to protect its natural resources for the benefit of its residents, communities and future generations. It is so disturbing that the profit-making goals of a private pipeline corporation would be given greater respect and protection than the rights of states and people,” says Maya van Rossum, CEO of the Delaware Riverkeeper Network (DRN).

Although the Biden administration has talked a whole heck of a lot about a green energy future, its Justice Department in March urged the Supreme Court to side with PennEast and allow the company to take land for its $1 billion project, citing the precedent of claiming eminent domain for projects of national importance.

Still, the state of New Jersey doesn’t want it built. Many residents, from whom PennEast would have to claim 49 parcels of land by eminent domain, don’t want it. And the four governors of NJ, New York, Delaware and Pennsylvania decided earlier this year to ban fracking in the Basin, and potentially ban river water being used to support fracking.

DRN is planning a demonstration on July 15 at the state Capitol to urge Gov. Murphy to continue efforts to ban the project—PennEast still needs a permit from the state to begin construction in New Jersey.

Anthony Cox, chair of the PennEast Board of Managers, said in a statement: “This decision is about more than just the PennEast project; it protects consumers who rely on infrastructure projects—found to be in the public benefit after thorough scientific and environmental reviews —from being denied access to much-needed energy by narrow State political interests. PennEast understood that New Jersey brought this case for political purposes, but 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.”

[Editor’s note: Bold claim that building a natural gas pipeline enables clean energy goals…]

The Court ruled 5-4 in favor of PennEast, but not along ideological lines—with Justices Clarence Thomas, Elena Kagan, Neil Gorsuch and Amy Coney Barrett dissenting. Wrote Chief Justice John Roberts in the ruling: “The States implicitly consented to private condemnation suits when they ratified the Constitution, and respondents’ arguments to the contrary cannot be squared with the Court’s precedents.”