Supreme Court won’t sidetrack plans for Pennsylvania-to-New Jersey natural gas pipeline

WASHINGTON — The Supreme Court sided Tuesday with a pipeline company in a dispute with New Jersey over land the company needs for a natural gas pipeline — a move that dismayed environmentalists and left some state officials vowing to continue to fight despite the ruling.

Both liberal and conservative justices joined to rule 5-4 for the PennEast Pipeline Co. The 116-mile planned pipeline is to run from Pennsylvania’s Luzerne County to Mercer County in New Jersey. The Federal Energy Regulatory Commission had allowed the company's project to move forward in 2018 by granting PennEast a so-called certificate of public convenience and necessity, but lawsuits followed.

The company ultimately took New Jersey to court to acquire state-controlled land for its project. PennEast argued the commission’s greenlighting of its project allowed it to take New Jersey to court and to use eminent domain to acquire state-controlled properties. The Supreme Court agreed.

Chief Justice John Roberts wrote for the majority that when FERC issues a a certificate of public convenience and necessity, federal law authorizes the certificate's holder “to condemn all necessary rights-of-way, whether owned by private parties or States.”

Roberts was joined by conservative justices Samuel Alito and Brett Kavanaugh and liberal justices Stephen Breyer and Sonia Sotomayor.

The decision from the high court doesn't end litigation over the pipeline. A separate challenge to the pipeline involving New Jersey is pending in a federal appeals court in Washington.

During arguments in the case in April, a lawyer for the PennEast Pipeline Co. acknowledged that if the company had lost at the Supreme Court, the 120-mile pipeline would “not be built at least in anything like its current configuration.”

New Jersey, which opposes the pipeline project, had argued that PennEast couldn't take the state to court to acquire the property — only the United States government can. The state argued that a federal law, the Natural Gas Act, does not explicitly authorize private lawsuits by private parties against states.

A federal appeals court sided with New Jersey while a lower court had sided with PennEast.

The oil and gas industry closely watched the case, assuming that if the appeals court decision was allowed to stand, it would grant states power to quash new pipelines.

The New Jersey Business & Industry Association heralded the decision, saying that the “harmful lower court decision ... would have irrefutably had a negative impact on the supply and cost of natural gas in New Jersey, as well as interstate commerce.”

But plenty of opponents of the pipeline were rankled.

Rep. Frank Pallone (D-N.J.), chairman of the House Committee on Energy and Commerce, said in a statement that the “disturbing decision sets the dangerous precedent of allowing interstate pipelines to take State-owned lands without a State’s consent.”

New Jersey Attorney General Gurbir Grewal said he will continue to fight against the pipeline and noted the state still has “other, ongoing legal challenges to this proposed pipeline, which is unnecessary and would be destructive to New Jersey lands.”

Ed Potosnak, executive director of the New Jersey League of Conservation Voters, called the Supreme Court’s decision “extremely alarming.”

He said “the fight is far from over” and that PennEast, aside from other legal challenges, must also obtain permits from New Jersey, the U.S. Army Corps of Engineers, and the Delaware River Basin Commission. Potosnak said the pipeline threatens natural resources, historic sites, pristine protected streams and endangered species.”

Staff writer Frank Kummer contributed to this report.