Over the next five years, the federal government expects to spend over a trillion dollars on a wide range of infrastructure projects, including road widenings, bridge repairs, and upgrading mass transit and the power grid (to name a few). Some projects will require the government to exercise its power of eminent domain to take private property to create new right-of-way access or expand existing access rights.
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Eminent Domain Issues Affecting New Jersey Condominiums – Can the Government Really Take Part of Our Common Elements?
Eminent domain, sometimes referred to as condemnation, occurs when the government exercises its power to take private property for public use. When this awesome power is exercised, the government must pay the property owner “just compensation” for the property taken, as required by the Fifth Amendment of the United States Constitution.
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Infrastructure Spending’s Impact on Retail and Commercial Sites
The federal government is expected to pass a large infrastructure spending bill in 2021 to fund road and bridge improvement projects. Retail property owners need to keep a careful eye on the construction plans for these projects since they often involve modifying highway access and installing sidewalks. These design changes can have an impact on a retail site.
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Property Owners to Continue Fight After Setback From United States Supreme Court
In a 5 to 4 decision, the United States Supreme Court ruled that PennEast Pipeline (“PennEast”) can use the power of eminent domain to take property rights from the State of New Jersey. The case in question involves a 113-mile natural gas pipeline project proposed by PennEast that requires the company to acquire real estate from private and public property owners in order to install the pipeline. Once the Federal Energy Regulatory Commission (FERC) granted its approval for the project, PennEast either negotiated the purchase of the necessary property rights or filed complaints in the United States District Court seeking to take the property rights using the power of eminent domain. The State of New Jersey opposed PennEast’s efforts to use federal courts to take property in which the State of New Jersey has an interest. The United States Third Circuit Court of Appeals ruled in 2019 that PennEast could not use federal courts to exercise the power of eminent domain to seize land from the State of New Jersey for the construction of the pipeline relying on language from the Eleventh Amendment of the United States Constitution. The Eleventh Amendment provides states with certain immunity protections barring private parties from suing states in federal court. The PennEast case raises important issues of state rights versus federal law, and implicates states’ rights of sovereign immunity.
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State of New Jersey Opposes PennEast Pipeline Company’s Request to Involve U.S. Supreme Court
Yesterday, the State of New Jersey filed its brief in opposition to PennEast Pipeline Company’s request to the United States Supreme Court (PennEast’s request is known as a “Petition for Writ of Certiorari”) to review and reverse the Third Circuit Court of Appeal’s decision holding that PennEast cannot sue the State of New Jersey in federal court. Also, nine other “friends of the court” (amicus) filed briefs in support of PennEast’s position, mostly associations that support the natural gas pipeline industry.
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PennEast Pipeline Update: FERC and the U.S. Supreme Court
The litigation surrounding the PennEast pipeline continues, with neither side backing down. Although the battle is being fought in multiple courts, two recent orders are worth highlighting.
On February 20, 2020, the Federal Energy Regulatory Commission (FERC) granted PennEast Pipeline Company, LLC’s (“PennEast”) request for an extension of time to complete its 116 mile natural gas pipeline project which originates in Pennsylvania and extends into Mercer County, New Jersey. The original deadline to complete construction was January 19, 2020, and the new deadline is January 19, 2022.
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The Third Circuit Court of Appeals Hit Penneast Pipeline Company with Another Setback
The Third Circuit Court of Appeals hit PennEast Pipeline Company with another setback on November 5, 2019. The Court of Appeals denied the company’s request for a rehearing of the Court’s earlier decision, which held that the 11th Amendment of the United States Constitution prohibits PennEast Pipeline Company from suing the State of New
Ewing Township NJ Revaluation – Commercial, Retail, and Industrial Owners Beware
Ewing Township’s revaluation has been a long time coming and appears to be done. Property owners in Ewing Township will be receiving their new real estate tax assessment notices in the next few weeks and will have a small window to meet with the revaluation company to discuss the new tax assessment or file a tax appeal.
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Frequently Asked Questions About Defending Eminent Domain Actions Filed by Pipeline Companies
Does a private pipeline company have the right to file a lawsuit to take private property to build a gas pipeline?
Under the Natural Gas Act, a pipeline company can apply to the Federal Energy Regulatory Commission (FERC) for a Certificate of Public Convenience and Necessity. If FERC issues the Certificate of Public Convenience and Necessity and the pipeline company meets many other conditions, it can obtain the power take private property.
The PennEast Pipeline: What Happens Next?
A few weeks ago, the Federal Energy Regulatory Commission (FERC) granted conditional approval of the PennEast Pipeline. FERC is a federal agency which regulates gas pipelines and issued an order to allow PennEast to proceed forward with its project on January 19, 2018. This approval will allow PennEast to file complaints in the United States Federal Courts in New Jersey and Pennsylvania seeking to exercise the power of eminent domain to take property rights to install the pipeline.
Since this announcement, the most common question has been: what happens next?