Stupid Pipeline Trick from New Jersey Now Being Advanced Nationally

Tom Shepstone
Shepstone Management Company, Inc.

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A completely deceptive and stupid pipeline trick practiced by New Jersey won favor with the 3rd Circuit Court of Appeals is now being advanced by others.

Despite a very well argued appeal to the full Third Circuit Court of Appeals after a throughly bad decision from a three judge panel, the full court refused to take it. This leaves not only PennEast Pipeline, but also every other new pipeline and FERC, in a very bad position where obstructionist states and even individual landowners can sprague pipelines by simply entering into conservation easement agreements. It’s a complete fraud on everyone involved and thoroughly abuses the very concept of a conservation easement. And, fractivists, loving the fraud, are trying to now push this stupid pipeline trick as a template for pipeline opposition.

stupid pipeline trick

New Jersey farmland on Asbury-Bloomsbury Road with a pipeline running through it. Does it look like this pipeline had any impact on the farm?

Readers may recall Jim Willis first identified the problem with the panel decision:

Anti-fossil fuelers will use this new loophole in order to block new pipeline projects. Here’s how it works. A crackpot anti-fossil fueler who doesn’t want a pipeline across his land in Upstate NY calls up Andy Cuomo and says, “Hey Andy, I’ll give you an easement for my property that says my land is only to be used for ‘recreational’ or ‘agricultural’ purposes. The state gets to own the mineral rights under my land, but I’ll own the surface and junk it up any old which way I want to. Deal?” The next day the corrupt Dept. of Environmental Conservation shows up with the appropriate paperwork for the anti landowner to sign. Voila. The state can now block a pipeline from crossing that property. That’s how we see this decision playing out with other pipeline projects.

I pointed out that PennEast had not really addressed this stupid pipeline trick in their legal filings with the Third Circuit’s panel, having instead relied primarily on the provisions of the Natural Gas Act. The subsequent filing of the appeal with the full court was better, I thought, and made much more of the easement aspect, being very compelling overall in demonstrating the panel decision was simply untenable both legally and practically. It still only obliquely dealt with the easement abuse angle, though, and the full court rejected the appeal.

This has predictably led to other fractivists wanting to use the same stupid pipeline trick. Here’s a bit of the news from PipelineLaw.com:

Last week, Annie Kuster (D-NH) along with four other Democratic members of Congress introduced a proposed Natural Gas Act (NGA) amendment aimed at banning the use of eminent domain for construction or expansion of interstate natural gas pipeline infrastructure through lands subject to conservation restrictions in favor of, or owned by, non-profit entities or local governments. The proposed legislation is “The Protecting Our Conserved Lands Act of 2019.”

If enacted, the bill would prohibit NGA condemnation of lands that: (1) are subject to a “conservation easement or other conservation-related restriction” in favor of a 501(c)(3) non-profit entity, or a municipality, county or other division of local government, or (2) that are owned by or deeded to any such non-profit entity or locality “for the purpose of conservation.”

This is the typically crap that comes of New England where they desperately need more gas but don’t want pipelines, apparently hoping the stuff will come in the modified form of pixie dust that magically appears as needed. So, the usual politicos, eager to demagogue, have picked up on New Jersey’s stupid pipeline trick, saying to themselves “now, here’s a way to get some green press by putting this into a piece of legislation that’s going nowhere.” It’s deliberate vague, of course, and is intended to give any landowner the right to stop a pipeline by donating an easement to a state of similar mind. It’s the Jim Willis nightmare in the form of a proposed bill.

The legislation is meaningless as a practical matter unless radical Democrats take over Congress and the Presidency, but, in the meantime, there is the Third Circuit problem. That decision will have to be appealed to the U.S. Supreme Court and if that doesn’t work, a legislative fix will be necessary, if that’s even feasible. It’s a real obstacle and will affect every proposed pipeline in the country if not corrected.

The appeal to the Supremes will clearly have to be even stronger than the one to the full Third Circuit. It would seem, for starters, that it will have to forcefully raise interstate commerce issues, for instance. What right does any state have to create a phony obstacle to delivering gas to another state?

And, the abuse of easement law must get greater attention. These agricultural and conservation easements were never intended to interfere with interstate commerce or with natural gas pipeline infrastructure. The idea a pipeline is incompatible with agriculture is false on its face as a thousand pictures of farmland above pipelines being plowed will demonstrate and every pipeline is a wildlife bonanza for deer, turkeys and the Golden Winged Warbler.

There are three aspects of the easement abuse that must addressed. First, there is the issue Jim raises. How can the donation or sale of an easement to a state by a single landowner possibly be allowed to stand in the way of a pipeline? There are a dozen reasons why this cannot be allowed to stand, beginning with the fact an easement is a negative declaration, not land ownership per se.

Secondly, if the easement was donated, there was undoubtedly Federal tax benefits involved and they were surely of greater value than those from the state. So, why should the state be able to assert their interest in not building a pipeline is greater than the Federal interests in building that same pipeline as expressed in the Natural Gas Act? Moreover, the state program description specifically says “The sale of development rights does not make farmland public property.”

Thirdly, although I seem to be the only one raising this point, but the land condemnation involved in this instance involves real land and not just an easement. If the landowner wants the pipeline, the state does not want it and there is nothing in the easement with respect to pipelines, the latter is effectively condemning additional interests in the property without paying additional compensation for those interests. The landowner would get compensated for any damages to their land, if any, by pipeline construction, but who is compensating that same landowner for the loss of the value of having a pipeline that might pay royalties or serve a business with gas? The state is robbing such a landowner.

Where will this all go? I don’t know but the attempt by this New Hampshire Congresswoman to legislate the New Jersey and Third Circuit decision is the clearest indication of the inherent flaws giving states the right to treat easements as land itself and the chaos that will result if not somehow corrected.

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17 thoughts on “Stupid Pipeline Trick from New Jersey Now Being Advanced Nationally

  1. I wonder how this would play out on a smaller scale with other utilities like sewer, water and, yes electricity.
    Sure, NY has Article X of the PSL that does a complete runaround of SEQRA as long as the transmission of the electricity comes from “renewable” sources.
    All it takes is someone to start a similar movement and all badly needed infrastructure comes to a halt.
    The balkanization of America keeps moving forward.

  2. Tom – The Conservation Easement craze has been going on in Northern Minnesota for nearly a decade as another way to delay or block a pipeline. Many Minnesotans, being passive aggressive, will speak with and lead the acquisition agent to believe they are willing to negotiate, and then go to the County Recorder the next day and record a perpetual conservation easement. When I took the IRWA course on eminent domain (to find out what had changed in 30 years – not much, BTW), I learned that under Federal Law, this will not prohibit condemnation. However, if this congressperson from New Hampshire has her way, that protection under The ACT will disappear.

  3. Well Tom , you still can’t get what you want and you’re the only one talking about your peculiar perspective.
    The people have to protect themselves and their land from the worldwide takeover by oil and gas interests.
    You promote the Elite Agenda and the people are getting wind of this and
    resisting and of course, you don’t like it.

    Having a pipeline and especially the new, large and high-pressure ones
    devalues the land..

    More folks are seeing through your polluting Corporate Agenda..

    You just need to get ready for the Renewables coming your way.

    • Well said Vera. Time for the dinosaurs to move ahead to the future, for cleaner air and water. It’s become a necessity. Thank goodness for the people of New Jersey. They’re much smarter than us Pennsylvanians.

  4. But Vera these ugly renewables (including noisy wind turbines) placed on large tracts don’t devalue the land? Can you cite any instances where fields of wind turbines or solar panels have increased the value of land, either the land they are on or neighboring ones? There is in fact substantial local resistance to these projects. They are eyesores.

    I won’t even mention how they kill birds or otherwise disturb local wildlife.

    • Fred, just respond to my specific comment about the risks of gas and oil in our neighborhoods and the devaluing of pipelines on our lands..
      Don’t deflect with another tangent.

      I’m talking about gas and responding to gas comments.

      We need better renewables..
      Geothermal may be a better answer.

      • Geothermals, Vera? Really? Science question for you: what is the fluid used for heat transfer in geothermal systems?

        Isn’t it that nasty pressurized contaminated brine sitting within the rock formations?

  5. Proud of my home state for offering up this “trick”. The real “trick” has been the fossil fuel industry’s ability to blow off long term environmental responsibility for the sake of short term profits for their shareholders by using eminent domain. Sorry, I’ll take environmental sustainability over a shareholders profit margin, especially given fossil fuels are finite and this fracking craze is just a last ditch effort to keep society dependent on a resource that will soon be unavailable.

  6. Proud of my home state for offering up this “trick”. The real “trick” has been the fossil fuel industry’s ability to blow off long term environmental responsibility for the sake of short term profits for their shareholders by using eminent domain. Sorry, I’ll take environmental sustainability over a shareholders profit margin, especially given fossil fuels are finite and this fracking craze is just a last ditch effort to keep society dependent on a resource that will soon be unavailable.

      • Presumably not, as evidenced by how I observed NOTHING ENVIRONMENTALLY SUSTAINABLE ABOUT the lifestyles of those of Mr. ProudSecondID’s fellow members of the New Jersey (or the “Garbage State” as us kids used to interpret the license plate slogan when riding through it) wing of the CONSUMPTION end of the fossil-fuel racket who thought that Susquehanna County would be a good place to build their energy-and-land-gulping, snout-house second homes until, happily, the gasmen came and stopped that trend.

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