PennEast, the pipeline company that plans to build 118 miles of natural gas pipeline through New Jersey, has been dealt another significant blow, this time possibly fatally.
“NJDEP’s rejection of PennEast’s permit application is another major setback for this unneeded pipeline,” said Patty Cronheim, outreach coordinator for Rethink Energy NJ. “This recent action followed on the heels of a federal court decision prohibiting PennEast from taking state-owned lands for construction of its project. They are appealing to the courts and federal agencies, so this battle isn’t over yet. We are pleased that Gov. Phil Murphy and his administration have opposed PennEast at every turn and vow to continue this fight until it’s over.”
Penn East had argued that the federal Natural Gas Act allowed it to condemn any properties it needed along the path of its proposed pipeline. However, on September 10, the federal Third Circuit Court of Appeals overturned a lower court decision and decided that, as a private company, PennEast may not use eminent domain to take 40 State-owned parcels that are “previously and permanently preserved for recreational, conservation and/or agricultural uses through State tax dollars,” according to the website for New Jersey Attorney General Gurbir S. Grewal.
“From the very beginning, we have made clear that the Eleventh Amendment prohibits private pipeline companies like PennEast from condemning state properties for private use, and we’re pleased that the Third Circuit agreed with our position. This is great news for New Jersey and the environment,” Grewal explained on his website.
The Eleventh Amendment precludes individuals from suing states without the State’s consent.
Subsequently, on October 10, the New Jersey Department of Environmental Protection denied a series of applications PennEast had submitted in August. DEP approval of those applications is required for PennEast to move its pipeline plan through New Jersey forward.
In a letter to PennEast, Diane Dow, director of land use for the DEP, informed PennEast that, per the Third Circuit’s decision ruling that it may not use eminent domain, PennEast does not have legal control over 49 parcels throughout its proposed route through New Jersey and thus PennEast’s application to DEP cannot be deemed “administratively complete”.
The letter continued: “Given this fundamental deficiency, the NJDEP hereby rejects and administratively closes the Application. PennEast’s Application is denied without prejudice, and as a result, no application…is currently pending in any form before NJDEP”.
According to local land use attorney Ryan Kennedy, when an administrative agency denies an application “without prejudice,” the applicant is “free to bring the same application before the body again. ‘With prejudice’ would trigger the concept of ‘res judicata’ meaning the matter was already decided. ‘Without prejudice’ dismissals are usually administrative and do not bar bringing back or renewing the request at a later date for a substantive review or consideration, with prejudice dismissals act as a bar to the application and mean it was denied on the actual merits already. “
When asked what PennEast would have to do to resubmit the application, Kennedy suggested, “PennEast would either need to successfully appeal the Third Circuit’s decision to revise the application or avoid the property that the State of NJ has an interest in.”
In Hopewell Township, which would have been substantially impacted by PennEast’s project, long-time opponents are cautiously optimistic.
Hopewell Township Mayor Kristin McLaughlin stated, “Getting to this point required the cooperation of a whole lot of people and groups. Everyone had to stand up, make noise, contact legislators, and be there for the rallies or we would never have been able to achieve this. PennEast has a lot of money and we need to all remain watchful in case they file something else. It’s not dead until PennEast says it’s dead – the coalition needs to hold together to continue to protect the land we all love.”