Yesterday, PennEast’s lawyers submitted a brief to the Supreme Court attempting to rebut the State of NJ’s brief in opposition of the Court taking up PennEast’s case.
The brief was astonishing in its single minded message: the apocalypse is here.
As I read through the brief, I imagined it to be a modern narrative of Dante’s Inferno. Man being punished for its transgressions, no matter how minor, in the most gruesome fashion possible. For minor bobbles, PennEast was being excoriated, and darn it, it’s not fair!
According to PennEast’s lawyers, the sky is not only falling, it’s crashing in on the industry like a runaway dinosaur killer meteor. Demons are roaming the lands unopposed. Volcanoes are covering the Earth in lava, while tornadoes rip the rest apart, and hurricanes flood the ruins. Mutant undead are being born of horrible, twisted monsters. And as a plague of locusts and frogs and slime torrents down on the industry, PennEast and the other pipeline companies are staring at a stark future – a grim place where State Attorney Generals will morph into robotic Terminators, coming to hunt pipeline companies down one by one in a hellish landscape of nearing dystopia.
Hell on Earth is upon us all, and it is all the State of New Jersey and the 3rd Circuit’s Fault!
Read the brief for yourself:
So perhaps my imagination is running away from me, but indeed PennEast’s response is incredibly overwrought and hyperbolic in the extreme. PennEast’s lawyers say the 3rd circuit decision “Invalidates An Act of Congress!”. They claim the State of NJ “fails to demonstrate any real constitutional concern to avoid”, completely blind to the fact that the entire NJ argument is about the 11th amendment and the Constitutionally-provided protections given to it as a Sovereign State under the law. They repeatedly calls the States’ claims “peculiar”, despite the fact that the 3rd Circuit found for the State unanimously, with no dissent from either the 3 Judge panel nor in the en banc request of the full court.
They claim the question at hand is “exceptionally important”, and “threatens a profound disruption” of the industry. They claim “everyone” begs to differ with the State and the 3rd circuit.
All of these claims come about without a single footnote or reference, and an anemic table of authorities that looks like an intern phoned it in. And no where do they even mention the 11th Amendment of Sovereign Immunity, the core of both the State’s argument and the 3rd Circuit ruling.
PennEast’s lawyers have no legal argument here at all, and attempt to make none. This brief of theirs is nothing more than fire and brimstone, a naked attempt to troll the Court for bonus points. I don’t know it for a fact, but I suspect this was not the lawyer’s idea. I imagine some executive at UGI or another PennEast executive screamed at the lawyers for a few hours “to do something now!”, and this is the end result.
I suspect the Court will see this brief for what it is, and recycle the paper its printed on appropriately.