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NC Joins States for Right to Block Pipelines

Nineteen states, including North Carolina and Virginia, are among the parties supporting New Jersey in defending that state’s right to block a controversial natural gas pipeline from taking state land.

Last week, the U.S. Supreme Court announced arguments in PennEast Pipeline Co. v. New Jersey will be heard April 28. In addition to those principal parties, multiple other interested entities — from other states to trade associations, local governments, and concerned citizen and environmental groups — have weighed in on the legal case through amicus curiae (“friend of the court”) legal briefs.

The case involves a proposed pipeline to take natural gas from fracking production wells in eastern Pennsylvania to New Jersey. That pipeline has been the focus of strong resistance from local governments and citizen groups in both states. Environmental groups like the Delaware Riverkeeper Network and Environment New Jersey cite damage to waterways, wetlands, wildlife, and parks if the pipeline is built.

In 2018, the Federal Energy Regulatory Commission (FERC) approved the pipeline proposal. Under the 1938 Natural Gas Act, that FERC approval authorized the pipeline company to take and pay for the land needed to build it, whether the landowners consented or not. The State of New Jersey denied the company’s claims to state lands, effectively blocking the pipeline. The company appealed that denial, and a federal District Court judge ruled in the company’s favor.

However, New Jersey then appealed that decision. In 2019, the Third Circuit Court of Appeals, based in Philadelphia, ruled the state has the constitutional power to stop the company’s land seizure. Naturally, the pipeline company sought review by the Supreme Court, and it agreed to review the decision. 

The case centers on the question of whether states should be able to reject the use of eminent domain to take state-owned land by private companies using the federal Natural Gas Act. If the court recognizes that broader reading of state powers, then Congress would need to overhaul the entire process for constructing pipelines, or face the prospect that new gas pipelines could be ground to a stop.

The implications for climate policy and renewable energy are significant but complex. A decision in favor of New Jersey would make it far easier for climate advocates to slow the extension of fossil fuel infrastructure. However, it would also open an avenue for opponents of renewable energy development to interfere with transmission infrastructure for offshore wind and other clean energy projects. Conservation advocates should follow this case as it develops.

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