N.J. presses Supreme Court not to hear PennEast Pipeline case after feds throw support behind it - NJ.com

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The New Jersey Attorney General is urging the Supreme Court not to review and overturn a federal appeals court ruling issued last year against a $1 billion natural gas pipeline that will run through New Jersey and the Lehigh Valley.

The Federal Court of Appeals for the Third Circuit ruled in September 2019 that the PennEast Pipeline cannot seize New Jersey-owned land in order to build the gas line. Citing the Eleventh Amendment, the decision held that PennEast cannot use eminent domain on state land under the legal doctrine of sovereign immunity, which exempts New Jersey from condemnation lawsuits initiated by private parties like PennEast.

In response to the ruling, PennEast asked the Supreme Court to review the appeals decision. Prior to making a decision on whether or not to hear it, the Supreme Court requested the Solicitor General for the Department of Justice file a brief on the case — which was filed on Dec. 9.

The PennEast pipeline is a proposed 116-mile, 36-inch diameter underground gas pipeline that would originate in Pennsylvania and traverse through western Hunterdon and Mercer counties.

New Jersey Attorney General Gurbir S. Grewal and other lawyers representing the state filed a brief on Dec. 23 that responds to the Dec. 9 brief filed by the Trump administration and the Federal Energy Regulatory Commission.

In the earlier brief, lawyers for the Justice Department and FERC criticize the lower court ruling itself and contend the court lacked the jurisdiction to issue a ruling at all.

In the latest brief, the state argues that the Trump administration’s rejection of the legitimacy of the Third Circuit’s ruling is “wrong.” Specifically, Grewal and others contend that the U.S. “fails to identify any other pipeline affected by the decision ... despite passage of over a year” as well as “ignores entirely that PennEast is currently seeking FERC’s approval of a modified pipeline consistent with the panel’s ruling.”

“The United States instead focuses primarily on its disagreements with the panel, rehashing arguments that the panel unanimously rejected,” the brief states.

While the Trump administration previously said the lower court’s decision “threatens to significantly disrupt” the government’s ability to administer the country’s natural gas supply, the state’s brief argues that their “emphasis on the impact of the decision is misguided.”

“Despite the passage of over a year since the panel’s decision, the United States offers no evidence of disruption, only speculation,” it was written in the brief.

Criticizing the Trump administration’s opinion that the court of appeals should not have exercised its jurisdiction over the pipeline, the state argued that Congress “lacks authority to stop a State from asserting a limit on the jurisdiction of the very court where it was sued.”

“It defies logic and law to say that a state cannot assert a limitation on the jurisdiction of a federal court unless it affirmatively files another suit, against another party, in another court,” the brief adds. “That is why the United States points to no other instance where a state must assert its immunity in any court other than the one where it was sued.”

Patricia Kornick, spokesperson for PennEast, did not offer a response to the latest brief. Instead, she directed her attention to the brief filed earlier by Trump administration, describing it as “another encouraging development” for the PennEast Pipeline following the 2019 federal appeals court decision against it.

“By advocating for the U.S. Supreme Court to grant the PennEast petition, the solicitor general agreed with the Federal Energy Regulatory Commission and 18 business, labor and consumer advocacy organizations, which filed amicus briefs, and the project itself that last year’s lower court ruling seriously was flawed and should be reversed,” Kornick said.

She also expressed PennEast’s hope that the Supreme Court will decide to hear the case.

“New Jersey and Pennsylvania families and businesses deserve energy that is clean, reliable, affordable, and American-made,” Kornick said. “We remain hopeful that the court quickly grants the PennEast petition and reverses the Third Circuit decision, allowing consumers finally to benefit from this long-overdue infrastructure project to lower bills, create jobs and protect our environment.”

Tom Gilbert, campaign director for NJ Conservation Foundation and ReThink Energy NJ, expressed his support for the brief filed by the state.

“We applaud Governor (Phil) Murphy and Attorney General Grewal for continuing to defend New Jersey’s rights and preserved lands against an unneeded, polluting pipeline,” Gilbert said.

Jennifer Danis, senior fellow for Sabin Center for Climate Change Law, commended Grewal for “plainly and forcefully demonstrated why the Court should not take up PennEast’s attempt to subvert state sovereignty.”

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Caroline Fassett may be reached at cfassett@njadvancemedia.com

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