Groups Challenge Federal Certificate for PennEast

Posted February 13, 2018

Seek Rehearing to Determine Need for Project and Protect Citizens’ Rights

Click to Tweet: Eminent domain for no public use: Conservation groups challenge PennEast pipeline’s federal Certificate. http://ow.ly/KaAK30imFY9 @ConserveNJ @rethinkenergynj @eelc_org @theH2Oshed

February 13, 2018 – Attorneys for New Jersey Conservation Foundation (NJ Conservation) and Stony Brook–Millstone Watershed Association (SBMWA) have filed a request with the Federal Energy Regulatory Commission (FERC) for rehearing and rescission of its recent order granting a conditional certificate of public convenience and necessity. The attorneys also filed a motion for a stay of that Certificate Order.

On behalf of their clients, the Eastern Environmental Law Center (EELC) and Columbia Environmental Law Clinic reviewed the mountain of evidence showing that the pipeline is not needed to deliver gas to the region, reduce gas prices, ensure reliability, allow for flexibility, or for any other reason that would benefit the public. Attorneys also set out why FERC’s order, which PennEast is using to file more than 150 condemnation lawsuits, violates the U.S. Constitution. So far, lawsuits have been filed in federal court to immediately seize 115 properties in Hunterdon and Mercer counties, and an additional 50 in Pennsylvania.

“FERC ignored volumes of evidence from experts demonstrating that the region PennEast purports to be serving has more than enough gas and that the PennEast pipeline is not needed,” said Tom Gilbert, campaign director, NJ Conservation. “There is clearly no benefit to this proposed project, yet PennEast has already started the eminent domain process to take property from more than 100 landowners in New Jersey alone.”

Specifically, the groups stated that FERC should grant the request for rehearing and rescission because, among other reasons, its January certificate for PennEast:

  • violates the Natural Gas Act by failing to demonstrate substantial evidence that the project is required by the public convenience and necessity or is in the public use;
  • violates the 5th Amendment of the U.S. Constitution by providing for takings without a constitutionally sufficient public use analysis;
  • was issued prior to securing New Jersey’s section 401 Water Quality Certification, in violation of the Clean Water Act;
  • relies on a deficient NEPA (National Environmental Policy Act) process.

“FERC issued this Order less than one month after it acknowledged its pipeline review process is not properly considering need, impacts to landowners, or the environment,” said Jennifer Danis, senior staff attorney, EELC. “Our request asks FERC to reconsider its flawed decision to allow PennEast to plow forward, blindly relying on private contracts to justify massive land seizures.”

The request challenges FERC’s issuance of the Jan. 19 order when significant amounts of data concerning environmental impacts still have not been provided by PennEast.

“FERC failed to consider the magnitude of the damage that PennEast would cause to our water, land and natural resources — and acted before New Jersey had its chance to review the project’s harm to natural resources — and we will not stand by while these natural resources are lost for a project that is unneeded and unwanted by the people of New Jersey,” said Jim Waltman, executive director, SBMWA.

“It’s hard to imagine that FERC will allow this project to go forward and allow PennEast to take private property when the data unequivocally show that the region has no need for this pipeline or its capacity,” said Susan Kraham, senior staff attorney, Columbia Environmental Law Clinic.

Expert analysis included in the request and motion conclusively disproves PennEast’s main claim — that the pipeline is needed for reliability during cold weather.

“This demonstrates that PennEast is not needed to meet peak winter demand, not even for a single day, even during extreme weather events,” said the expert, Greg Lander of Skipping Stone.

According to the request for rehearing, “it is empirically unreasonable to conclude that any additional capacity is required to meet New Jersey needs during peak winter periods.”

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