A plain reading of the Fifth Amendment to the United States Constitution, commonly referred to as the “Taking Clause,” appears on its face to limit the government’s right to take private property only in instances where the property will be put to a public use. However, over the years, the United States Supreme Court has expanded the scope of the Taking Clause to include takings where there is a “public benefit” rather than just a use.
You may recall the Kelo case where private property was taken by a local municipality and transferred to private developers in order to revitalize an economically depressed part of Connecticut. This was a case where the government was not going to own the property in the end for some type of public use, rather private developers would own it for the private use, i.e., redevelopment. In a very controversial decision, the United States Supreme Court approved the use of the power of eminent domain to take the property, finding that the public benefits of the economic redevelopment plan (ie. creation of jobs, increase in tax base and construction of new buildings) was sufficient to invoke the Taking Clause. Despite approving this, the United States Supreme Court cautioned that the Taking Clause cannot be used if there are only incidental or pretexual public benefits, or, impermissible favoritism to a private party. Barring these restrictions under this ruling, “public benefit” overrides the textual “public use” limitation.
Keeping these constitutional concepts in mind, one must question whether the public benefits alleged by PennEast Pipeline are incidental and pretextual. Also, is the Federal Energy Regulation Commission (FERC) showing impermissible favoritism to a private company? In order to answer these questions, the proposed public benefits of the PennEast pipeline must be scrutinized and carefully weighed against the adverse consequences of constructing and operating the pipeline.
PennEast argues that construction of the pipeline will generate new jobs; that additional capacity will help keep rates low; and that PennEast has valuable contracts with end users, i.e., the pipeline is good for business interests. On review, it becomes clear that pipeline jobs will only be temporary — that is, they will only exist during the construction phase. After the pipeline is done, those jobs are gone. Moreover, it is not clear that New Jersey or Pennsylvania residents will be called upon to fill these jobs.
PennEast’s claim that the pipeline will have positive impact on the cost of natural gas for the region also is suspect. Some opponents believe that in the event the construction of the new pipeline results in overcapacity, a portion of the costs will be passed through to customers via rate increases. There also is a question as to how much of the pipeline gas will be distributed locally where the pipeline is situated, and rumors which suggest that a significant portion of the natural gas is allocated for export. There is no reason to question PennEast’s allegation that it has valuable contracts to sell the gas — the problem is that no one knows to whom that gas will be sold.
All of these issues raise a red flag about public benefit. If the jobs are only temporary and the gas is exported, is there a real benefit to the public? Or only to the private interests of PennEast?
There also is a concern about the adverse consequences on the environment and residents of New Jersey and Pennsylvania. Eminent domain abuse is just one issue — the immediate and long-term environmental consequences must be taken into account as well. For example, according to the Stony Brook-Millstone Watershed Association, the pipeline will 1) threaten 31 streams commonly known as C-1 waterways entitled to a 300-foot buffer for development that have exceptional ecological, recreational, water supply and aesthetic significance; 2) traverse approximately 69 properties preserved by tax money and generous private donations; and 3) result in the destruction of countless and possibly irreplaceable adult trees.
Of additional concern are the methods used to construct the pipeline including the potential need to blast in areas of Hunterdon and Mercer counties. When blasting occurs, the vibrations may change the way water flows underground and thus damage private and public water wells and water tables. The pipeline is mapped through parts of New Jersey and Pennsylvania where rural communities depend on well water. Disruption of drinkable, usable water sources is a major concern for public health.
Construction of the pipeline affects not only private interests, but also pits public policy rules against one another. The State of New Jersey has spent substantial taxpayer money purchasing properties and conservation easements in order for New Jersey to be able to enjoy protected farmland and preserved open space. The same holds true for various non-profit groups. For example, the Hunterdon Land Trust has helped preserve more than 8,000 acres of forests, fields and farms in New Jersey, with much of the money coming from the government. If the pipeline gets approved, PennEast will have the power of eminent domain to force the Hunterdon Land Trust and private property owners to allow the pipeline to be built on property preserved as open space. Does the need for the extra gas (assuming there is a need) outweigh the need to keep open space preserved for the public?
Many private citizens that are in danger of losing land, and public organizations interested in maintaining protected land grants, have voiced opinions that benefits claimed by PennEast are pretextual and that the power of eminent domain is being used to impermissibly favor PennEast, a private company. If you agree you must act now to try to prevent the construction of the pipeline in these protected and private areas.
First, you need to find out where the pipeline is being built and analyze the potential harm to the environment. One impact, for example, is that the pipeline is expected to cross the Appalachian Trail. If you enjoy hiking you might find the noise and damage will severely impact public recreation in these areas — and you need to let the government know that.
Second, especially if you own private land that will be taken under eminent domain, you should probably choose not to cooperate with the pipeline company. Approximately 70 percent of the property owners who are directly impacted by the pipeline have refused to allow the pipeline to survey their property — and they have the right to do so under trespassing laws. As a result of the limited access, PennEast will have a difficult time completing its application to both FERC and the New Jersey Department of Environmental Protection.
Finally, if you are interested in blocking this construction, join a group actively challenging PennEast’s right to build the pipeline. Placing signs on your front yard gets the message out but active, vocal participation has a more immediate, and arguably, far-ranging impact.
Companies are in business to make money. There is no problem with that — it is the bedrock of job and financial security in our communities. Public utilities are a necessity — most people benefit from the use of natural gas and other forms of energy in their homes. We want companies to do well and we want public utilities to benefit local interest. That does not mean we must sacrifice environmental and private property interests to every pipeline project that is introduced by for-profit, self-interested companies, particularly when they are crossing publicly preserved lands and risk destroying public water sources and public health. The bottom line is that not every pipeline should be approved with a rubber stamp by FERC and the State of New Jersey.
The United States Supreme Court has made it clear that pretextual benefits and favoritism cannot be the basis for the use of the power of eminent domain — one of the most powerful intrusive rights that the government can assert over private citizens. There must be a real and concrete public benefit, one that outweighs the harm to the environment and residents of New Jersey and Pennsylvania. Look where the pipeline is being built, research the proposed benefits, decide for yourself, and then, most importantly, take action.
This article was originally written by Timothy Duggan on NJ.com. Here is a link to the original post.