The Supreme Court announced Wednesday it will hear the PennEast Pipeline Company’s appeal of an eminent domain ruling in New Jersey.

The proposed $1 billion pipeline hit a snag in the Garden State in 2019 when a federal appeals court ruled the company couldn’t use eminent domain to acquire 42 properties that are owned by the state and preserved for farmland or open space.

The judges wrote that while the federal Natural Gas Act allows private gas companies to exercise the federal government’s power to take property by eminent domain, that doesn’t extend to state-owned properties.

The properties fall under the 11th Amendment, which protects states from lawsuits by private parties in federal court, the panel concluded.

Late last year, lawyers for the Trump Administration filed a brief asking the Supreme Court to take up the case. New Jersey Attorney General Gurbir S. Grewal had urged the court not to take another look at the ruling.

The Supreme Court said it will hear arguments in April.

Originally, PennEast sought to build the entire 116-mile pipeline in one shot, but has now split the project into two phases including 68 miles of pipe and the portion running through Carbon and Monroe counties, entirely within Pennsylvania and ready to deliver natural gas in 2022.

The second phase would include the remaining route in Pennsylvania and New Jersey, with a targeted completion of 2024.

Tony Cox, chair of the board of managers of the PennEast Pipeline Company, said 18 business, labor and consumer advocacy organizations filed amicus briefs in support of the PennEast petition to the Supreme Court.

“Congress passed the Natural Gas Act specifically to avoid state and local vetoes of interstate projects found by federal regulators to be in the public need and benefit,” Cox said.

“The misguided Third Circuit ruling in fall 2019 turned nearly 80 years of federal government interpretation and industry practice on their heads. In its written response before the U.S. Supreme Court last spring, the State of New Jersey even agreed that the U.S. Constitution allows the federal government to condemn state property and took issue only with whether it can delegate that authority to a private party.”

Maya van Rossum, the Delaware Riverkeeper, leader of the Delaware Riverkeeper Network and leading opponent of the PennEast pipeline, said Wednesday she is hopeful the court will side with the Third Circuit ruling.

“We need our highest Court to reaffirm to fossil fuel companies that they do not have the ability to trample over the rights of the state to protect its natural resources for the benefit of its communities,” she said. “While we believe the PennEast Pipeline Company was premature in taking the case before the Supreme Court, we have confidence in the Court to make the right decision and protect the sovereign immunity of the states.”

Setback at the federal level

The Federal Energy Regulatory Commission, on Jan. 19, did not take action on an amended proposal by PennEast that would have allowed it to begin construction and cut trees.

“We fully expected that FERC would rubber stamp the certificate with no discussion,” said Linda Christman of local pipeline opposition group Save Carbon County. “But we were surprised when Commissioner (Neil) Chatterjee announced that he would be voting no on the issuance of the certificate, not because he opposed the project, but because he was concerned that FERC lacked proper jurisdiction since PennEast still has a case before the Federal Court that has been appealed to the Supreme Court.”

Christman said opponents have long contended that once a court has taken a project under its jurisdiction, FERC may not allow construction to proceed.

“To do so would deny litigants meaningful intervention by the courts since construction would continue while a case was under consideration,” she added.

PennEast officials said at the time they remain positive the project will advance.

“PennEast is confident the PennEast Pipeline Project will advance to deliver much-needed energy,” spokesperson Patricia Kornick said.

Remaining Pennsylvania permits

Permits concerning erosion and sediment control and water obstruction and encroachment are the only two left under consideration by the Pennsylvania Department of Environmental Protection.

Christman said Carbon County is particularly impacted with nearly half of the affected streams within its county. DEP held a virtual public hearing on Jan. 13 and over 70 speakers attended over the course of three hours.

“This project will negatively impact Pennsylvania ecosystems and the environment,” said Carol Etheridge of Lehighton. “Negative impacts have already been recorded during soil testing. It stands to reason that more damage will continue if the project is allowed to move forward.”

Most of the supporting comments during the hearing came from union workers who could potentially land work during construction of the pipeline and nonprofit organizations.

Carl Marrara, vice president of government affairs for the Pennsylvania Manufacturers’ Association, said natural gas demand is poised to increase by 40% over the next decade and projects like PennEast would help fill the gap.

“This would move 1 billion cubic feet of natural gas every day to where it is most needed to serve businesses and families,” Marrara said.