On Tuesday, June 29, 2021, the United States Supreme Court reversed the Third Circuit and held that Section 717f(h) of the Natural Gas Act authorizes Federal Energy Regulatory Commission (FERC) certificate holders to “condemn all necessary rights-of-way, including land in which the State holds an interest.” See PennEast Pipeline Co., LLC v. New Jersey, Slip Op. No. 19-1039, (June 29, 2021). This holding is consistent with history and precedent regarding the superior power of federal eminent domain. Read More »

Share | Email| Comments|  Topics: Condemnation, Eminent Domain, Federal Energy Regulatory Commission, FERC, Marcellus Shale, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pipelines, Public Lands, Sovereign Immunity, Supreme Court, Takings, Takings Clause, Third Circuit, United States Supreme Court

Content for this post was provided by Isabel Teuton, a MGKF summer associate.

In National Fuel Gas Supply Corp. v. Schueckler, 2020 WL 3453939 (N.Y. June 25, 2020),the State of New York Court of Appeals held that the issuance of a certificate of convenience and necessity by the Federal Energy Regulatory Commission (FERC) under the Natural Gas Act (NGA) exempted the holder of the certificate from complying with the public notice and hearing requirements of New York’s Eminent Domain Procedure Law (EDPL) even where the certificate holder had not yet met other conditions attached to the certificate. The Court reasoned that since FERC placed no condition on the vested eminent domain power granted with the certificate and had completed its mandated analysis of the pipeline’s effect on the public interest, there was a valid exemption from further review under EDPL 206(A), thus permitting the condemnation to move forward. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Condemnation, Eminent Domain, Natural Gas Act, New York, Oil and Gas, Pipelines

This Post was authored by Lisa Maeyer, a MGKF summer associate. 

On June 8, 2020, the Commonwealth Court of Pennsylvania affirmed a trial court’s holding that flooding from sewage overflows not resulting from intentional activity on the part of a sanitary authority did not constitute a de facto taking of a landowner’s affected property. In the Matter of: Condemnation by the Franklin Twp. Sewage Auth., No. 1237 C.D. 2019, 2020 WL 3039070 (Pa. Cmwlth. June 8, 2020). In particular, the Court held that because the sewage overflows resulted from the age of the system and infiltration and inflows not caused by any actions of the Franklin Township Municipal Sanitary Authority (the “Authority”), the lower court properly sustained preliminary objections to Plaintiff William Ott’s petition seeking compensation for a de facto taking of his property. Read More »

Share | Email| Comments|  Topics: Condemnation, Damages, Eminent Domain, Flooding, Pennsylvania, Property Damage, Property Value, Real Estate, Sovereign Immunity, Stormwater, Takings, Trespass, Water

On September 10, the Third Circuit held that while the National Gas Act (NGA) delegates the federal government’s power of eminent domain to private gas companies, it does not necessarily delegate the federal government’s exemption from state sovereign immunity. In re: PennEast Pipeline Company, LLC, No. 19-1191 (3d Cir. 2019). As a result, private entities acting under the NGA cannot condemn state-owned property absent action by an accountable federal official. Read More »

Share | Email| Comments|  Topics: Condemnation, Eleventh Amendment, Eminent Domain, Federal Energy Regulatory Commission, FERC, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pipelines, Public Lands, Sovereign Immunity, Takings, Third Circuit

On September 4, 2018, the U.S. Court of Appeals for the Third Circuit determined that the Third Circuit, and not the Pennsylvania Environmental Hearing Board (“EHB”), has jurisdiction to review Water Quality Certifications issued by the Pennsylvania Department of Environmental Protection (“DEP”) for interstate natural gas projects governed by the Natural Gas Act. See Del. Riverkeeper Network, et al. v. Dep’t of Envtl. Prot., No. 16-221, 2018 WL 4201626 (3d Cir. Sept. 4, 2018). The Third Circuit also held that DEP does not violate Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) by issuing a Water Quality Certification that is conditioned on obtaining substantive permits. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Water Act, Condemnation, EHB, Eminent Domain, Energy, Environmental Rights Amendment, Federal Energy Regulatory Commission, Marcellus Shale, Natural Gas Act, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

In July, 2001, the New Jersey Superior Court decided the case of White Oak Funding, Inc. v. Winning, 341 N.J. Super. 294 (App.Div.), cert. denied. 170 N.J. 209 (2001), holding that an owner of contaminated property purchased before September 14, 1993, was not liable for historic contamination that the owner did not contribute to.  Only a week later, amendments to New Jersey’s Industrial Site Recovery Act (“ISRA”) became effective.  Among other things, those amendments provided that owners who acquired property prior to September 14, 1993 would not be liable for clean-up costs if “at the time of acquisition, [the purchaser undertook] all appropriate inquiry on the previous ownership and uses of the property based upon generally accepted good and customary standards.”  N.J.S.A. 58:10-23.11g(d)(5).  So, did this amendment abrogate the holding in White Oak?   A decade later, on October 29, 2012, the New Jersey Superior Court has said that it did. Read More »

Share | Email| Comments|  Topics: Cleanup, Condemnation, Contamination, Cost Recovery, Eminent Domain, ISRA, New Jersey, Real Estate, Spill Act, Takings

Yesterday, the Superior Court of New Jersey, Appellate Division, handed down a decision that should provide some solace to property owners of condemned property who often find themselves in the position of paying for remediation of a property which they no longer own and for which they’ve never received payment. Read More »

Share | Email| Comments|  Topics: Cleanup, Contamination, Eminent Domain, Landfill, New Jersey, Public Lands, Real Estate, Remediation