PennEast Granted Eminent Domain Rights in Pipeline Project

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A federal judge has ruled that PennEast Pipeline Co., which is seeking to build a controversial natural gas pipeline through parts of rural and suburban New Jersey, can proceed with its eminent domain proceedings.

U.S. District Judge Brian Martinotti, sitting in Newark, ruled Friday that because PennEast's plans had received preliminary approval by the Federal Energy Regulatory Commission, condemnation proceedings—though not construction, yet—can go forward.

"PennEast's application for orders of condemnation and for preliminary injunction allowing immediate possession of rights of way in advance of any award for just compensation is granted," Martinotti said.

PennEast is seeking to build a 116-mile natural gas pipeline from a point just south of Wilkes-Barre, Pennsylvania, to an area just north of Trenton. The pipeline, which would be 36 inches in diameter, would pass through rural and suburban areas in New Jersey, and is being vehemently opposed by local residents and governments.

The pipeline opponents claim, in addition to raising property value concerns, that the pipeline will have adverse effects on environmentally sensitive areas.

FERC issued a "Certificate of Public Convenience and Necessity" last January. And while the certificate noted that PennEast must still fulfill numerous environmental, safety, health and just compensation considerations, the project could continue, Martinotti said.

The project, FERC said, was necessary to ensure that the East Coast and exporters had readily accessible access to natural gas supplies.

From its end point north of Trenton, the pipeline would connect with other pipelines distributing natural gas to other parts of the country.

PennEast has filed about 130 complaints seeking about 147 parcels of land in New Jersey. The project is being challenged by dozens of landowners, Hunterdon County, and at least five rural or suburban townships.

Martinotti rejected claims by pipeline opponents that the FERC certification was not final since there are requirements that PennEast still must meet, and that therefore the property takings should be held off.

"The court finds ... PennEast holds a final, valid, FERC certification upon which it can, and has standing to, pursue the right of eminent domain," Martinotti said.

"Ultimately, defendants will not be harmed by the court granting immediate possession," the judge said. "While the court is sympathetic to each property owners' individual interests, the taking of property can be monetarily compensated."

The judge also rejected the opponents argument that PennEast can't go ahead with eminent domain because approval from the state Department of Environmental Protection is still pending.

"The Court is not persuaded by this chicken-and-egg argument," he said. "The DEP is requiring that PennEast have 100% of the surveys 'completed before the agency will undertake to complete its review and render decisions on the Permit and Certificate Application. ... Therefore, the Court finds PennEast will be irreparably harmed if it is not granted immediate access to the properties to begin surveys, complete its DEP Application, and satisfy FERC’s Environmental Conditions."

Martinotti did warn that PennEast could not begin construction until all of FERC's requirements were fulfilled, and each property owner justly compensated.

On the point of compensation, Martinotti appointed a five-member commission: former New Jersey Supreme Court Chief Justice James Zazzali, now counsel to Newark firms Gibbons and Zazzali, Fagella, Nowak, Kleinbaum & Friedman; retired U.S. District Judge Joel Pisano, now with Walsh Pizzi O'Reilly Falanga in Newark; Kevin O'Toole, the chairman of the Port Authority of New York and New Jersey and a partner with O'Toole Scrivo in West Orange; Joshua Markowitz, who heads a firm in Princeton; and Soshana Schiff of McManimon, Scotland & Baumann in Roseland.

Neither PennEast's lead attorney, James Graziano of Archer & Greiner in Haddonfield, nor the defendants' lead attorney, Kevin Coakley of Connell Foley in Roseland, returned calls seeking comment.

One opponent of the project, the Sierra Club of New Jersey, issued a statement in response to the ruling.

“This is not just the beginning of the end, this is the end of the beginning. The next round in the battle to stop PennEast starts now. Although we expected it, it is still wrong that court has gave PennEast access to get on people’s property," said Sierra Club Director Jeff Tittel.