Last week during the West Amwell Citizens Against the Pipeline meeting, we talked with Jeff Tittel of NJ Sierra Club and Tim Duggan, a lawyer at Stark and Stark, about what landowners should expect to happen in the coming days, weeks, and months now that FERC has issued a decision.
There were two big messages I wanted to come out of the meeting.
First – we’re still going to beat this thing. The FERC decision was expected, and is basically the “end of the beginning” of the process. Now the real fight happens at a whole different level in other agencies, including DRBC and NJDEP. They have the power to kill PennEast, and there are strong indications that they will.
Second – it’s not time to pull out the champagne and celebrate, because while we think we will ultimately win, the FERC decision DOES convene eminent domain powers to PennEast so sue landowners, get possession of their land, and in the short term also take one or more legal approaches to get quick access for survey purposes.
We have lots of information on the first part – beating PennEast. But right now that can wait. This article is going to focus on the second part – the landowners, and what to expect now that FERC has a Certificate of Public Convenience and Necessity in hand.
Relevant slides from the WACAP meeting are available here:
To recap, on January 19th, in the dead of the night of a Friday night with a government shutdown looming, FERC snuck in a decision to grant PennEast a Conditional Certificate of Public Convenient and Necessity. The good news is the “Conditional” part means PennEast still can’t do much of anything, because it has to meet all those conditions (including getting NJDEP and DRBC permits, among dozens of others) before it can actually build. The bad news is the Certificate grants eminent domain power. Here’s what that means to landowners in terms of a timeline.
As of right now, even though PennEast has eminent domain powers, they still have zero right to be on anyone’s property who has not signed an agreement with. So if you’ve fought PennEast and not signed anything, PennEast still has no right to be on your property at all.
If you see someone trespassing, call 911, then call your local CAP leader, or post it on Facebook in the Stop PennEast Group, or someway or another holler “help”, and we’ll have people come running to help you sort it out.
We are working to educate police departments on this. I know the West Amwell cops are on board in helping landowners protect their rights against trespassers. I hope other cops are too.
For the whole process, GET PICTURES. License plates, individuals, equipment, etc. If the police for some reason aren’t cooperating, get their badge numbers and let us know, and we’ll see what action can be taken.
The point is, right now PennEast still can’t come on your land, and you have rights. Be sure to exercise them.
And folks – keep it safe. Don’t escalate it into any kind of violence, because if you take that route, not only is your safety in jeopardy, but other’s people safety may be as well, and you’ll become a poster child for “those crazy PennEast opponents out there”. Don’t give them the satisfaction.
Next Two Weeks – Feb 5, 2018 Deadline
Next up, PennEast has FedEx’d “final offers” to all landowners it doesn’t have agreements with. The agreements have a deadline of February 5th. Landowners have a choice to agree or to do nothing. If you do nothing, then PennEast will work to get access to your land.
From what we’ve heard, the offers still are ridiculously low with ridiculous terms that are all in favor of PennEast, and catastrophic for the landowners. And PennEast is threatening to give a valuation to Condemnation Courts that are 1/2 or 1/3 of their “Final Order”.
In other words, PennEast is once again threatening land owners.
If you are landowner, then this choice is strictly yours, and it’s up to you what your own personal situation is. But I’ll echo Susan Meacham, who at the meeting said “We got this far and have foiled PennEast at every turn because the landowners have united together, and united we have told them “no“, and if we can stay united we will continue to slow their efforts”.
I couldn’t agree more. The choice is yours, but look at how much we’ve accomplished at continuing to say “no” to PennEast so far.
Next several weeks
For landowners who choose to say “No” to PennEast, PennEast will try to take your land via condemnation court. This is a complex issue, and it could happen a few different ways, but this is the rough outline.
We think, based on other past pipelines, that PennEast will go for survey access first. To do that, they’re going to go to a special condemnation domain court in Trenton, and plead that they need immediate access to your land for survey purposes. If they take this route, you’ll get notified that PennEast is suing you in court, either in person or certified mail or something similar. You can choose to fight this or not. If I were in landowners shoes I’d fight it. You can choose to also do this on your own, or hire a lawyer. I suspect people are taking many variations on this. Some have their own lawyers, others have banded together, and I know HALT is helping pool resources and find lawyers in some capacity as well.
Before March 31st, 2018
If PennEast is really desperate, they may try to go for premature tree cutting like they did on the Constitution Pipeline. This is very unlikely, as it was only approved a couple of weeks ago, but again if they are really desperate they may try to get this authority from FERC (even in the absence of NJDEP application). There is some precedent for FERC allowing this. They call it “non-mechanized” construction, where guys with chainsaws walk the root and cut all the trees down along the PennEast proposed right of way.
We are in the lookout for this, and if PennEast and FERC attempt it, we’ll organize campaigns to fight it. If NJ objects strongly enough, FERC will in fact back down and not allow PennEast to cut our trees. The same is true in PA, but that’s a tougher hurdle given that PADEP has given approval and has a tougher political climate.
The good news is that even FERC likely won’t allow tree cutting on land that PennEast han’t already condemned. So only those who have signed easements with PennEast would be at risk. But that’s a risk we don’ want to take.
In parallel to all this, PennEast will working on a “permanent taking” of the Right of Way. This involves going to Federal Condemnation court in Trenton. There you and PennEast will duke it out in what the value of your land is, and possibly conditions on the “taking”.
Someone will serve you papers when PennEast files (either in person or certified mail or something similar). So you’ll know.
There are many options you can take here. You can ignore it. If you do that, the judge will likely side with PennEast and give you whatever PennEast offers. PennEast will get permanent access to the ROW, but can’t do anything with it until all conditions are met, and FERC gives a final order to proceed (we think, again, that PennEast will never fulfill those conditions).
You can fight it on your own. This is possible but difficult. Eminent domain law and condemnations are complex and fraught with traps for the inexperienced.
Finally, as with the survey access stuff, you can have a lawyer working for you (your own, or pooled, or something else). I’d recommend this given how hard it is to grasp all this. Keep in mind most lawyers will not charge you up front for this type of work, but instead will take a cut of whatever compensation the judge approves.
You can choose to fight this in many levels and trip up PennEast along the way. That is harder, and in general you can’t really “stop” this kind of eminent domain easily, you can also slow it up and get better conditions. Your lawyer may not do this on contingency but may charge you an hourly rate if you want to fight like this (and again look at the lawyer-pooling options!).
But – and this is hard to accept but the reality – you can’t really stop this in condemnation court. The court will accept the FERC certificate of “proof” of eminent domain rights. The fight here is all down to your compensation, conditions favorable to you, and possibly throwing sand in the gears to help us slow it all down and maybe prevent some damage like premature tree cutting or taking too quickly with zero NJDEP permits.
The end Game
One long-term thing for landowners to keep an eye on: PennEast can’t build anything until it meets all of the Conditions on the Certificate, and this includes things like the NJDEP Clean Water Act permits, DRBC permits, and a host of other permits. We think those are going to be shot down and PennEast ultimately won’t get built.
This leaves two risks for landowners, even assuming PennEast is beat. One, you may still end up with a premature tree cutting as happened on Constitution. We are working hard to prevent this, and it is mainly a danger to those who already have easements with PennEast.
Two, even if we beat PennEast, you’ll still have that easement encumbering your land. For those who have signed voluntarily, watch out for PennEast trying to sell it to a third party. What PennEast can and can’t do is mostly dependent on the exact language of the easement you signed, so it can only be determined on a case by case basis.
For those who’ve gone the eminent domain route, there may be some hope. The condemnation will be tied to the FERC certificate, and only allow PennEast to be built there and nothing else at all (no other pipelines, no upgrades, etc). If PennEast is ultimately defeated, PennEast will have worthless ROW rights. There may be options to get your rights back in the case of a “dangling eminent domain”.