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Penneast Pipeline Co., LLC v. Permanent Easement of 0.06 Acres In Moore Township

United States District Court, E.D. Pennsylvania

September 17, 2019

PENNEAST PIPELINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT OF 0.06 ACRES IN MOORE TOWNSHIP, NORTHAMPTON COUNTY, PENNSYLVANIA, TAX PARCEL NO. J5-3-3, et al, Defendants. PENNEAST PIPELINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT OF 0.98 ACRES AND A TEMPORARY EASEMENT OF 1.61 ACRES IN LOWER NAZARETH TOWNSHIP, NORTHAMPTON COUNTY, PENNSYLVANIA, TAX PARCEL NO. L 7-6-10, et al, Defendants. PENNEAST PIPELINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT OF 0.75 ACRES AND A TEMPORARY EASEMENT OF 1.01 ACRES IN LOWER SAUCON TOWNSHIP, NORTHAMPTON COUNTY, PENNSYLVANIA, TAX PARCEL NO. N8-14-9, et al, Defendants. PENNEAST PIPELINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT OF 0.33 ACRES AND A TEMPORARY EASEMENT OF 0.68 ACRES IN LOWER NAZARETH TOWNSHIP, NORTHAMPTON COUNTY, PENNSYLVANIA, TAX PARCEL NO. K7-23-2, et al, Defendants. PENNEAST PIPELINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT OF 0.98 ACRES AND TEMPORARY EASEMENT OF 1.45 ACRES IN MOORE TOWNSHIP, NORTHAMPTON COUNTY, PENNSYLVANIA, TAX PARCEL NO. H5-17-1, et al, Defendants. PENNEAST PIPELINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT OF 0.59 ACRES IN BETHLEHEM TOWNSHIP, NORTHAMPTON COUNTY, PENNSYLVANIA, TAX PARCEL NO. N8-8-3, et al, Defendants. PENNEAST PIPELINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT OF 1.29 ACRES AND TEMPORARY EASEMENT OF 1.92 ACRES IN WILLIAMS TOWNSHIP, NORTHAMPTON COUNTY, PENNSYLVANIA, TAX PARCEL NO. P9-7-13, et al, Defendants. PENNEAST PIPELINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT OF 0.27 ACRES AND TEMPORARY EASEMENT OF 0.53 ACRES IN WILLIAMS TOWNSHIP, NORTHAMPTON COUNTY, PENNSYLVANIA, TAX PARCEL NO. P9-6-4A, et al, Defendants. PENNEAST PIPELINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT OF 2.88 ACRES AND TEMPORARY EASEMENT OF 3.80 ACRES IN WILLIAMS TOWNSHIP, NORTHAMPTON COUNTY, PENNSYLVANIA, TAX PARCEL NO. P9-12-30, et al, Defendants.

          MEMORANDUM OPINION

          SCHMEHL, J.

         I. INTRODUCTION

         Plaintiff, PennEast Pipeline Company, LLC (“PennEast”), is involved in a project to construct and operate a natural gas pipeline from northern Pennsylvania to New Jersey, eastern and southern Pennsylvania and surrounding states. Before the Court are the Motions for Partial Summary Judgment of PennEast in the nine above-captioned cases. Defendant/landowners Jane Snyder, Lorraine C. Mineo, Bruce R. Petrie and Ginger L. Petrie (“Petrie”), Marian M. Buskirk, City of Easton, Ned D. Heindel, Linda H. Heindel, Alan D. Kirby, Jr., and Patricia Spaziani (“Heindel”) and Ned. D. and Linda H. Heindel Living Trust (“Heindel Trust”) all filed oppositions to PennEast's Motions for Partial Summary Judgment. In addition, Defendant/interest holders Northampton County and Williams Township filed oppositions to the Motions. PennEast filed replies, and argument was held on said motions.

         For the following reasons, I find that PennEast has the substantive right to condemn the properties in question and its Motions for Partial Summary Judgment are granted.

         II. LEGAL STANDARD

         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. Proc. 56(c). “A motion for summary judgment will not be defeated by ‘the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is “material” if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

         In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. “After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth. of N.Y. and N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250.

         III. FACTUAL BACKGROUND

         On September 24, 2015, PennEast filed an application with the FERC for a Certificate Order for its Project to construct new pipeline facilities in Pennsylvania and New Jersey. (Compl. at ¶ 12.) The FERC evaluated the public need for the Project and completed a review of environmental impacts and operational considerations before issuing the FERC Order authorizing the Project. (Id.) Throughout the FERC certification process, the public was notified about the Project and was provided with the opportunity to participate in the FERC's administrative process, including through the following notices:

(a) the FERC issued a Notice of Intent to Prepare an Environmental Impact Statement for the Planned PennEast Project, Request for Comments on Environmental Issues, and Notice of Public Scoping Meetings on January 13, 2015, which was published in the Federal Register and mailed to interested parties including federal, state, and local officials, agency representatives, environmental and public interest groups, Native American tribes, local libraries and newspapers, and affected property owners (i.e., landowners crossed or adjacent to the pipeline facilities or within 0.5 miles of a compressor station), and other stakeholders who had indicated an interest in the Project;
(b) PennEast filed an Application for Certificate of Public Convenience and Necessity and Related Authorizations, and FERC issued notice of PennEast's application on October 15, 2015;
(c) FERC published a Draft Environmental Impact Statement (“EIS”) on July 22, 2016 and invited public comments on the Draft EIS; and
(d) FERC issued a Notice announcing the availability of the final EIS on April 7, 2017, which was published in the Federal Register on April 14, 2017 and mailed to interested parties and stakeholders.

(Id. at ¶ 14.)

         The FERC also invited the public to participate in scoping meetings for the Project and reviewed and considered hundreds of public comments received from interested parties, including federal, state, and local governmental agencies, elected officials, environmental and public interest groups, and potentially affected landowners before issuing its FERC Order. (Id. at ¶ 15.) The FERC completed its extensive assessment and, in an order dated January 19, 2018, concluded that there is a need for the PennEast Project and that the Project will serve the public interest. (Id. at ¶ 17; England Decl. ¶ 6.)

         Specifically, the FERC concluded that “[b]ased on the benefits the project will provide to the shippers, the lack of adverse effects on existing customers, other pipelines and their captive customers, and effects on landowners and surrounding communities, we find, consistent with the Certificate Policy Statement[1] and section 7 of the NGA, that the public convenience and necessity requires approval of PennEast's proposal, subject to the conditions discussed [in the FERC Order].” (See Compl. Ex. B at ¶ 40.) On May 30, 2018, the FERC issued an order denying requests for rehearing for the limited purpose of further consideration (the “Tolling Order”) and denying requests for rescission of the Tolling Order.

         The Rights of Way are located on the Properties identified in each Complaint and are necessary to construct, install, operate, and maintain the pipeline facilities approved in the FERC Order (Id. at ¶ 2 (e), (f), 19; see also England Decl. at ¶ 8.) The Properties identified in each Complaint are located within the corridor approved for the construction, operation, and maintenance of the PennEast pipeline by the FERC Order, based upon alignment sheets that were reviewed and approved by the FERC. (England Decl. at ¶ 7.) The FERC reviewed and approved these Rights of Way prior to issuing the FERC Order. (Compl. at ¶ 21.) Before issuing the Order, the FERC reviewed extensive information and specifically considered the impact on Landowners and communities that might be affected by the Project, concluded that PennEast has taken steps to minimize adverse impacts on landowners and communities, and determined that the Project should move forward. (Id. at ¶ 22.)

         PennEast retained Western Land Service (“WLS”) to facilitate acquisition of the Rights of Way needed for the PennEast Pipeline Project. (Allison Decl. at ¶ 4.) Over a period of more than three years, WLS Land Agents communicated with Landowners multiple times to discuss PennEast's desire to access the Property to conduct surveys and other activities, as well as to discuss PennEast's plan to acquire the Rights of Way necessary for the Project. (Allison Decl. at ¶¶ 8, 13, 16.) Over the course of that time, the Land Agents documented each contact with Landowners immediately after the contact was made. (Id. at ¶ 14.) Records show that WLS had contact with or attempted contact with the Landowners numerous times to discuss PennEast's plans to acquire an easement over the Landowners' Property for the PennEast Project. (Id. at ¶ 16.) Despite PennEast's efforts to acquire the Rights of Way by agreement with the Landowners, PennEast has been unable to do so. (Allison Decl. at ¶ 17.)

         PennEast made its most recent offer to acquire the Rights of Way, which exceeded $3, 000.00, on or about January 20, 2018. (Id. at ¶ 18.) The Landowners have not accepted PennEast's offer. (Id. at ΒΆ 19.) PennEast has been unable to acquire by contract, and unable to agree with the Landowners concerning the compensation to be paid for ...


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