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Supreme Court allows fracked gas pipeline s use of eminent domain But the pipeline s victory comes with some big caveats
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To understand a sharp-elbows squabble thatâs developing behind the scenes in the state Capitol, one must first understand âpumped-storage hydro,â a way for electrical energy to be stored.
In its simplest form, water stored in a reservoir is released to generate power as it flows into a second reservoir at a lower elevation. Later, when the electrical gridâs need for power diminishes, the water is pumped back into the upper reservoir so the cycle can be repeated when demand increases.
Itâs not a new technology; in fact itâs been around for more than a century although never more than a marginal factor in global power generation. However, itâs drawing more interest of late in California because the state is pushing hard, in the name of battling climate change, to eliminate natural gas-fired generation in favor of wind, solar and other sources that do not emit greenhouse gases.
Wednesday, June 30, 2021
The U.S. Supreme Court held in PennEast Pipeline Co. v. New Jersey that natural gas pipeline companies with a certificate of public convenience and necessity issued by the Federal Energy Regulatory Commission (“FERC”) may condemn State lands.
In the June 29, 2021 decision, the Supreme Court overturned a ruling by the U.S. Court of Appeals for the Third Circuit that held the pipeline developer PennEast Pipeline Company could not seize land owned by the State of New Jersey. The Court held, in a 5-4 split ruling, that Section 7(h) of the Natural Gas Act (“NGA”), 15 U.S.C. § 717f(h), properly allowed FERC to confer to natural gas pipeline companies the authority to file lawsuits condemning State lands, and that a State cannot use its sovereign immunity under the Eleventh Amendment as a defense to condemnation proceedings.
Does the natural gas in the pipeline condemnation have sovereign immunity?
PennEast Pipeline Co. v. New Jersey This sovereign immunity does not protect New Jersey from a conviction lawsuit filed by a private company in federal court for obtaining pipeline property. Chief Justice John Roberts wrote the majority opinion, and Justices Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Brett Kavanaugh also joined the majority opinion. Justice Amy Connie Barrett objected, and Justice Clarence Thomas, Justice Elena Kagan, and Justice Neil Gorsuch joined the ranks. Gorsuch also wrote a separate objection added by Thomas.
background
PennEast obtained a certificate of public convenience and necessity from the Federal Energy Regulatory Commission under the Natural Gas Act to build a 116-mile pipeline from northeastern Pennsylvania to western New Jersey, which sparked controversy. In order to promote the pipeline project, the NGA delegates federal expropriation rights to private groups with
Supreme Court Rules that Private Parties May Condemn State-Owned Property | Ballard Spahr LLP
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