Eminent domain, or condemnation, is the power of the government to take private land for public purpose, even if the property owner objects. Needless to say, it’s a highly unpopular use of government authority. Nobody likes being forced to sell against their will, even if fair compensation is paid.
But did you know that private, for-profit companies can also use the power of eminent domain?
This could happen in Hunterdon and Mercer counties, if a consortium of companies known as PennEast gets permission to build a 118-mile natural gas pipeline from Luzerne County, Pennsylvania, to Mercer County. In New Jersey the route would cross more than 4,000 acres of preserved open space and farmland, and the property of over 500 landowners. And most of these landowners don’t want it.
PennEast filed its formal application with the Federal Energy Regulatory Commission (FERC) on September 24. If PennEast ultimately receives what’s known as a Certificate of Authority, it would gain the right of eminent domain to seize private lands, even those preserved, to construct the pipeline.
For more than a year, the vast majority of New Jersey landowners along the potential pipeline route objected strenuously to the proposal. One hundred percent of New Jersey municipalities along the route passed resolutions opposing the pipeline, and federal, state and county officials from both parties have spoken out against it.
Last month affected communities officially gained a powerful ally: Congressman Leonard Lance, 7th District.
In a letter to FERC chairman Norman C. Bay, Lance said he has “significant concerns” about PennEast’s proposed path along environmentally-sensitive lands within the Delaware River Watershed and thinks it would be “fiscally and environmentally irresponsible” to use taxpayer-protected open space in this way.
Lance expressed “strong reservations” about the potential use of eminent domain to compel the sale of rights-of-way along the proposed pipeline route, citing his constituents’ fears of losing their land. “I respectfully request that FERC use eminent domain authority only in the most limited and extreme cases that benefit public use and not private corporate entities,” he wrote.
Under the National Environmental Policy Act, federal agencies are required to thoroughly evaluate projects with significant impacts to the environment, and consider cumulative impacts, a range of alternatives and — most important — public need. The agencies get at these questions through an Environmental Impact Statement, or EIS.
But FERC’s process for conducting the environmental impact statements is flawed, in that each pipeline project is reviewed in a vacuum, as if others did not exist. Imagine developing a highway system with this flawed process!
To effectively evaluate PennEast, Lance argued, FERC must consider not only each individual pipeline proposal but all existing and proposed pipelines within the same region and energy market.
Rather than conducting a limited, individual environmental impact statement, wrote Lance, “I urge FERC instead to conduct a Programmatic Environmental Impact Statement (PEIS) for the PennEast line that will more accurately and comprehensively establish the need for and impacts of the proposal.”
Without the establishment of a clear public need, why would we ever agree to give a private company eminent domain authority?
Lance isn’t the only member of New Jersey’s Congressional delegation to question the way FERC reviews pipeline applications.
Earlier this year, Congresswoman Bonnie Watson Coleman, 12th District, labeled it a “flawed process,” pointing out FERC failed in past reviews to comprehensively consider the need for natural gas transmission infrastructure. Instead, she said, the agency evaluated each pipeline proposal in isolation.
The seizure of land through eminent domain is a tool designed to benefit the public. The FERC process must prove and guarantee that the pipeline will first and foremost benefit the public. But current information points to the opposite conclusion.
There is already strong evidence to suggest that the natural gas PennEast would deliver to New Jersey is not needed in New Jersey. An analysis conducted by Labyrinth Consulting found that building the PennEast pipeline would result in a 53 percent surplus beyond current demand in New Jersey.
“There is no justification based on need or cost to bring additional natural gas to New Jersey via PennEast or any other source,” the study concluded. It added that the apparent intent of PennEast is deliver the gas to interconnecting pipelines bound for other “downstream” markets outside New Jersey, including potential export overseas.
In other words, residents face the threat of losing both private and public lands, and risking the health and security of their communities, without benefit to this state.
Members of the PennEast consortium include PSEG, South Jersey Industries, New Jersey Resources, Spectra Energy and UGI.
FERC is hearing from New Jersey’s elected officials, but it also needs to hear from you. Please contact FERC at email@example.com or 202-502-6088 and urge the agency to conduct a full and comprehensive environmental review on PennEast, and to demand a clear demonstration of public need.
In addition to approval from FERC, PennEast will also need numerous permits from the NJ Department of Environmental Protection. Fortunately, the DEP has refused to consider permit applications from PennEast without complete information. Please thank the DEP for its stand and urge the agency to continue to protect our state’s resources and communities. You can reach the commissioner’s office at 609-292-2885.
For more information about PennEast and other pipelines, go to www.njconservation.org/currentissues.htm.
Byers is executive director of the New Jersey Conservation Foundation.