From time to time, courts are called upon to review established case law to make certain the original decision was correct and is being applied properly to the facts before the court. The issue of adhering to precedent has become somewhat of a hot button with our country’s political divide and views of the nine justices on U.S. Supreme Court. In New Jersey, the pending PennEast litigation, filed in the U.S. District Court for the District of New Jersey, has caused several other courts to take a closer look at the existing case law and the procedures relied upon by the natural gas industry exercising the power of eminent domain to construct natural gas pipelines. I will leave the policy decisions and effect of greenhouse gases to others, and just focus on several legal issues working their way through the courts.

Three issues being litigated in the PennEast pipeline litigation (one indirectly) that I believe are of particular interest are: (1) the State of New Jersey’s appeal to the U.S. Third Circuit Court of Appeals from a decision overruling the State’s Eleventh Amendment objection to federal court jurisdiction, which was decided Sept. 10, 2019; (2) the recent Petition for Writ of Certiorari filed with the United States Supreme Court seeking a review of the conflicting case law on the issue of whether district courts may issue preliminary injunctions granting immediate possession to private pipeline companies without payment of just compensation or entry of final judgment; and (3) the recent application filed by PennEast with the New Jersey Department of Environmental Protection (NJDEP) seeking review of the pipeline project under the Clean Water Act and other environmental laws. Property owners, non-profit corporations, and governmental entities believe these legal challenges may fundamentally change the landscape in natural gas pipeline litigation and provide property owners with more protection.

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