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Harrisburg Eminent Domain Law Blog

Transource: Independence Energy Connection Project

The Independence Energy Connection (IEC) project by Transource is a proposed electric utility project that will be affecting south central Pennsylvania and north central Maryland. The project was first announced back in June of 2017 and will entail the installation of new overhead electric transmission lines, new electric substations, and increased connectivity to preexisting lines and substations.1  The proposed lines will be around 45 miles long and are divided into two different sections. The western section will be around 25 miles long and will start in Franklin County, Pennsylvania and run southward towards Maryland into Washington County. The eastern section will be around 15 miles long and will start in York County, Pennsylvania and will move south west into Harford County, Maryland.2 

PennEast Pipeline receives FERC Order

On or about January 19, 2018, the Federal Energy Regulatory Commission, also known as FERC, issued a Certificate of Public Convenience and Necessity to PennEast approving the PennEast Pipeline. In light of the issuance of this Order, PennEast has sent final offer letters to any property owners who have not yet granted PennEast the easements requested relative to the Project. It is anticipated that PennEast will soon begin to file the Condemnation or Eminent Domain Complaints necessary to secure any remaining necessary easements. The purpose of these Complaints will be for PennEast to secure access to and possession of the property and easements necessary for the construction of the pipeline. Generally, once Eminent Domain Complaints are filed, strict deadlines for the filing of responsive pleadings are triggered. Additionally, these cases will usually proceed quickly to a hearing before the assigned Judge on the issues of access and possession with the issue of value usually being determined at a later date. Our eminent domain attorneys at Lavery Law have experience assisting property owners with responding to Condemnation Complaints as well as with negotiating easement and right of way agreements and are available to discuss what legal options may be available to you with respect to PennEast's interest in securing an easement. 

Can PennDOT or the Turnpike Commission take private land for a road or highway project?

Generally yes provided all of the legal requirements are met; however, a property owner still has the right to protect his or her property interests. Sometimes a project will involve PennDOT or the Turnpike Commission seeking an easement or right of way across a piece of property. Other times, it may involve the change of ownership of some or all of a piece of property. There are times when the taking will require a relocation of the property owner, but many times it does not. The type and extent of a taking depends on many factors such as the type and scope of the project and the location of the affected property in relation to the project. Determining the type and scope of a taking is an important first step in protecting a property owner's property interests.

Updates with the Atlantic Sunrise Natural Gas Pipeline

On Friday, February 3, 2017, the Federal Energy Regulatory Commission (FERC) approved the Atlantic Sunrise natural gas pipeline which will run through portions of Pennsylvania. It is our understanding that the pipeline still requires the issuance of certain permits from the Department of Environmental Protection and the United States Army Corps. Based upon the most recent information issued by Williams, construction is expected to begin on the pipeline in the second quarter of 2017 with the pipeline going online in mid-2018. In light of this information, we anticipate that Williams may soon start to file eminent domain or condemnation actions against those property owners with whom Williams has not yet reached an agreement for the acquisition of the requested right-of-way.

Atlantic Sunrise Pipeline Decision Delayed

In a filing issued on or about October 20, 2016, the Federal Energy Regulatory Commission (FERC) indicated that it would rule on the Atlantic Sunrise pipeline project no later than March 30, 2017. This delay apparently is due to the agency's consideration of a minor pipeline route change of approximately 1.4 miles in Lancaster County as well as consideration of potential air pollution impacts associated with the construction and operation of the necessary facilities for the pipeline project.

Commonwealth Court of Pennsylvania Finds in Favor of Sunoco

Recently, the Commonwealth Court of Pennsylvania issued a decision in a case arising from an appeal filed by a number of property owners in Cumberland County, Pennsylvania challenging Sunoco's status as a public utility and Mariner East 2's status as a public utility service. The property owners raised a number of arguments in support of their appeal which included:

Federal Regulators Reject Pipeline Plan in Oregon

Recently, we posted an article about a lawsuit which was filed against FERC by the Delaware Riverkeeper and the Delaware Riverkeeper Network which alleged, among other things, that FERC has not rejected any pipeline plans submitted to it for review. However, more recently, on March 11, 2016, FERC issued an Order denying the application for a Certificate in connection with the Jordan Cove Energy Project in Coos County, Oregon. The project had proposed to site, construct and operate a Liquefied Natural Gas (LNG) export terminal and associated facilities. In the decision letter, FERC indicated that the project developer had failed to demonstrate a need for the pipeline as the developers had not signed any formal contracts to sell the gas it intended to move to the Asian markets. Further, the developers had failed to negotiate easements with 95% of the property owners along the 232 mile pipeline.

Mariner East 1 Update

Sunoco Logistic Partners has announced that the Mariner East I Pipeline is now carrying both ethane and propane from the Washington County shale fields to the Marcus Hook Industrial Complex in Delaware County. Sunoco also announced that the first tanker carrying ethane to Europe departed from Marcus Hook on March 9, 2016.

Law Suit Filed Against FERC

We recently received information that a law suit has been filed against the Federal Energy Regulatory Commission (FERC) by the Delaware Riverkeeper Network and the Delaware Riverkeeper in the United States District Court for the District of Columbia challenging FERC's relationship with the pipeline industry. Based upon information set forth within the Complaint, it is alleged that FERC receives funding from the industry which it regulates thereby creating a bias. The Plaintiffs also allege that FERC has a 100% approval rate on pipelines. Through this suit, the Plaintiffs are seeking to have FERC's reimbursement mechanism in the Omnibus Reconciliation Act of 1986 declared unconstitutional and/or a declaration that FERC's power to grant pipeline projects the power of eminent domain is unconstitutional and that the ability of FERC to pre-empt local and state laws is unconstitutional. Additionally, the suit also seeks a declaration that the procedure utilized by FERC to issue Certificates of Convenience and Necessity relative to the PennEast Pipeline and the other projects within the Delaware River Basin deprives the Plaintiffs of due process.

Recent Philadelphia Court Decision Regarding Sunoco Pipeline

On February 5, 2016, Judge Carpenter of the Court of Common Pleas of Philadelphia County issued a Decision in The Clean Air Council, et al. v. Sunoco Pipeline LP matter. The matter arose from a Petition for Preliminary Injunction and a Complaint filed by the Clean Air Council and some local property owners challenging the Mariner East II pipeline. In September 2015, Sunoco filed Preliminary Objections in response to that Complaint claiming that Plaintiffs lacked the standing to bring suit and that the court lacked jurisdiction for a number of reasons including, but not limited to, that the action was barred by the Eminent Domain Code and must be brought before the Public Utility Commission. Following briefs and argument, Judge Carpenter issued a Decision. The most significant part of the Decision is that Judge Carpenter overruled the bulk of Sunoco's Preliminary Objections which included the rejection of Sunoco's arguments that the Plaintiffs lacked standing to bring the suit and that the Court lacks jurisdiction to hear these claims.

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