In an interesting article written by Phil McKenna in Inside Climate News, Mr. McKenna reports that recent federal court rulings could give states more authority to oppose natural gas pipeline projects. As Trump tries to clear the way for more fossil fuel pipeline construction, a diverse coalition of environmental advocates and landowners are gaining traction in their efforts to fight new pipeline projects by focusing on property rights.
The article argues that a pipeline’s use for eminent domain is inappropriate. As we know, eminent domain is an inherent power of the sovereign. But, while eminent domain is usually limited to government entities, once a pipeline project is approved by FERC, the power of eminent domain is extended to the company proposing the project under the rules laid out by congress in the Natural Gas Act.
When a federal appeals court in Washington, DC looked at the Nexus Gas Transmission pipeline, which would ship natural gas from Ohio to Michigan on its way to Ontario, it raised the issue of whether the project constituted a public benefit. The court did not order the already completed pipeline shut down, but it did ask FERC, which approved the project, to explain how the project constitutes a public benefit.
It is no secret that the Trump Administration has been working to fast-track fossil fuel projects by rolling back or seeking to curtail federal environmental regulations including the National Environmental Policy Act, Endangered Species Act rules and the Clean Water Act.
The recent rulings do not apply to oil pipelines, which are regulated by state rather than federal agencies; however, opponents of crude oil pipelines are also fighting eminent domain. In recent weeks, TC Energy, the Canadian company formerly known as TransCanada that is behind the Keystone XL pipeline, has filed lawsuits against dozens of landowners in Nebraska who have refused to sell their land to the company.
The proposed route for the PennEast pipeline would cross two parcels of state-owned land in New Jersey. When the state refused to grant easements for the pipeline, PennEast sued to try to take the land under the power of eminent domain.
In its lawsuit, PennEast argued that allowing New Jersey to deny the sale of state land “would leave states with unchecked veto power over interstate natural gas pipeline projects.”
A federal appeals court sided with the state, ruling on September 10 that PennEast cannot force the sale of state-owned land on the grounds that private parties cannot sue states in federal court. The judges wrote that their determination applies not only to two parcels of land that the state owns outright, but also to 40 additional parcels of land where the landowner has an “easement” agreement with the state to preserve the land for recreational, conservation or agricultural use.
The PennEast ruling could provide a powerful new tool for New York State in its opposition to the Constitution pipeline.