Amicus Curiae Brief — PennEast Pipeline Company, LLC, Petitioner v. New Jersey, et al.

Supreme Court briefMar 23, 2020

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Nos. 19-1039

In The

Supreme Court of the United States

PennEast Pipeline Company LLC,

Petitioner,

State of New Jersey, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

BRIEF OF THE UNITED ASSOCIATION OF

JOURNEYMEN AND APPRENTICES OF THE

PLUMBING AND PIPE FITTING INDUSTRY OF

THE UNITED STATES AND CANADA, AFL-CIO;

INTERNATIONAL UNION OF OPERATING

ENGINEERS; INTERNATIONAL BROTHERHOOD

OF TEAMSTERS; LABORERS’ DISTRICT

COUNCIL OF EASTERN PENNSYLVANIA; AND

NEW JERSEY STATE BUILDING AND

CONSTRUCTION TRADES COUNCIL AS

AMICI CURIAE IN SUPPORT OF PETITIONER

Ellen O. Boardman*

Anna Friedlander

Michael A. Gillman

O’Donoghue & O’Donoghue LLP

5301 Wisconsin Ave, NW

Suite 800

Washington, DC 20015

*Counsel of Record

Counsel for Amici Curiae

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

6/11/08

12:44:0

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST............................

SUMMARY OF ARGUMENT.............................

ARGUMENT........................................................

I. THE DECISION BELOW CONFLICTS

WITH THE ORDINARY MEANING OF

THE NATURAL GAS ACT........................

II. THE DECISION BELOW INTERFERES

WITH THE NGA’S PURPOSE TO

FACILITATE RELIABLE AND

EFFICIENT NATURAL GAS SUPPLY

NATIONWIDE............................................

III. THE DECISION BELOW WOULD

HAVE DETRIMENTAL EFFECTS FOR

SKILLED CONSTRUCTION WORKERS

AND LOCAL COMMUNITIES, WHICH

OTHERWISE BENEFIT FROM NEW

NATURAL GAS INFRASTRUCTURE......

A. The Decision Below Threatens the

Livelihoods of Thousands of Americans

Engaged in Natural Gas Infrastructure

Construction and Skilled Union Job

Opportunities in the Industry...............

B. The Decision Below Would Deprive

Local Communities of Economic

Benefits and Energy Savings................

CONCLUSION.....................................................

iii

TABLE OF AUTHORITIES

Page

Advocate Health Care Network v. Stapleton,

137 S.Ct. 1652 (2017)....................................

California v. Southland Royalty Co.,

436 U.S. 519 (1978).......................................

Carcieri v. Salazar,

555 U.S. 379 (2009).......................................

Director, Officer of Workers’ Comp. Programs,

Dep’t of Labor v. Greenwich Collieries,

512 U.S. 267 (1994).......................................

Dolan v. U.S. Postal Service,

546 U.S. 481 (2006).......................................

In re PennEast Pipeline Co. LLC,

938 F.3d 96 (3d Cir. 2019)............................

9, 12

Kohl v. United States,

91 U.S. 367 (1875).........................................

NAACP v. Fed. Power Comm’n,

425 U.S. 662 (1976).......................................

PennEast Pipeline Co., LLC,

164 FERC ¶ 61,098 (2018)............................

Schneidewind v. ANR Pipeline Co.,

485 U.S. 293 (1988).......................................

Thatcher v. Tennessee Gas Transmission Co.,

180 F.2d 644 (5th Cir. 1950).........................

U. S. ex rel. & for Use of Tennessee Valley

Auth. v. Powelson,

319 U.S. 266 (1943).......................................

TABLE OF AUTHORITIES—Continued

Statutes & Regulations

Page

15 U.S.C. § 717c................................................

15 U.S.C. § 717f.................................................

15 U.S.C. § 717f(b)............................................

15 U.S.C. § 717f(e)............................................

15 U.S.C. § 717f(h)............................................ passim

15 U.S.C. § 717k................................................

16 U.S.C. § 814 .................................................

Pub. L. No. 102-486, 106 Stat. 2776 (1992).....

18 C.F.R. § 157.14(a)(15)..................................

Other Authorities

Brief of Amici Curiae Interstate Natural Gas

Association of America, et al, In re

PennEast Pipeline Co., No. 19-1191 (3d Cir.

May 15, 2019)................................................

Energy Market Savings: Report and Analysis,

Concentric Energy Advisors, Inc. (March

2015), https://penneastpipeline.com/

ConcentricEconomicStudy/concentriceconomic-study.pdf........................................

Estimated Energy Market Savings from

Additional Pipeline Infrastructure Serving

Eastern Pennsylvania and New Jersey:

Update for Winter 2017/2018, Concentric

Energy Advisors, Inc. (April 2018),

https://penneastpipeline.com/wp-content/

uploads/2018/05/PennEast_Concentric_

Update_FINAL_4-24-2018.pdf.....................

TABLE OF AUTHORITIES—Continued

Exec. Order No. 13604, 77 Fed. Reg. 18887

(Mar. 22, 2012)..............................................

Page

Exec. Order No. 13766, 82 Fed. Reg. 8657

(Jan. 24, 2017)...............................................

Exec. Order No. 13807, 82 Fed. Reg. 40463

(Aug. 15, 2017)..............................................

Federal Energy Regulatory Commission

Declaratory Order, 170 FERC ¶ 61,064,

Docket No. RP20-41-000 (Jan. 30, 2020)..... passim

H.R. Rep. No. 102-474, 99-100 (1992)..............

PennEast Pipeline Project Economic Impact

Analysis, Econsult Solutions, Inc., Drexel

University School of Economics

(Feb. 2015)............................................

15, 17, 19

Plaintiff’s Response in Support of its Motion

for an Order of Condemnation and for

Preliminary Injunction, Columbia Gas

Transmission, LLC v. 0.12 Acres of Land,

More or Less, No. 1:19-cv-01444-GLR

(D.Md. July 8, 2019)......................................

S. Rep. No. 80-429 (1947).................................

7, 8

U.S. Department of Energy, U.S. Energy

Information Administration:

Electric Power Monthly with Data for

December 2019 (Feb. 26, 2020),

https://www.eia.gov/electricity/monthly/

current_month/epm.pdf............................

One in Three U.S. Households Faces a

Challenge in Meeting Energy Needs

(Sept. 19, 2018), https://www.eia.gov/

todayinenergy/detail.php?id=37072.........

TABLE OF AUTHORITIES—Continued

Page

U.S. Department of Transportation, Pipeline &

Hazardous Materials Safety Administration:

Pipeline Replacement Background,

https://www.phmsa.dot.gov/data-andstatistics/pipeline-replacement/pipelinereplacement-background...........................

19-20

Pipeline Replacement Updates,

https://opsweb.phmsa.dot.gov/pipeline_

replacement/by_decade_installation.asp..

STATEMENT OF INTEREST

The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the

United States and Canada, AFL-CIO (“UA”), is an international labor organization representing over

350,000 plumbers, pipefitters, sprinkler fitters, service

technicians, and welders. The UA’s membership includes 10,000–11,000 workers who perform pipefitting

and welding on pipelines. UA pipeliners have worked

on every major pipeline project in the United States.

The International Union of Operating Engineers

(“IUOE”) is a diversified trade union that primarily

represents operating engineers, who work as heavy

equipment operators, mechanics, and surveyors in the

construction and pipeline industries; as well as stationary engineers, who work in operations and maintenance in building and industrial complexes, and in

the service and petrochemical industries. The IUOE

has approximately 400,000 members and 110 local

unions in the U.S. and Canada. Operating engineers

operate, maintain, and repair all manner of heavy

equipment on pipeline projects.

Founded in 1903, the International Brotherhood of

Teamsters (“Teamsters”) represents more than 1.4

million hardworking men and women across the U.S.,

Canada, and Puerto Rico. Teamster members work in

a wide variety of industries, including the construction industry. Approximately 3,000 Teamster members nationwide regularly work on pipeline projects,

moving material and people to and from construction

sites, as well as around construction sites.

The Laborers’ District Council of Eastern Pennsylvania is a council of local unions affiliated with the

Laborers’ International Union of North America

(“LIUNA”) having territorial jurisdiction in 29 counties in Central and Northeastern Pennsylvania, including the counties through which the Penn

East

Pipeline would be constructed. Founded in 1903,

LIUNA is a general workers union representing over

half-a-million employees in the construction industry

and in public service in the United States and Canada.

As the union of record in both Canada and the United

States holding undisputed jurisdiction over the craft of

construction laborer, LIUNA represents the men and

women throughout North America who are responsible for constructing the buildings, roads, bridges, highways, energy, and other critical infrastructure that

makes life in the United States and Canada possible.

On pipelines, LIUNA members perform a wide variety

of tasks related to clearing the right of way, site preparation, pipe placement, and clean-up and restoration

of the landscape after the pipeline is buried.

The New Jersey State Building and Construction

Trades Council (“NJ B&CTC”) coordinates activity and

provides resources to 15 affiliated trade unions in the

construction industry. It represents 13 Local Building

Trades Councils, more than 100 local unions and over

150,000 rank and file members within New Jersey—including many who are members of the UA, IUOE, LIUNA, and Teamsters who regularly perform work on

pipeline projects in New Jersey and the surrounding

area. Created in 1903, the NJ B&CTC has helped its

affiliated building trades unions to make job sites safer,

deliver apprenticeship and journey-level training, organize new workers, support legislation that affects

working families, and assist in securing improved wages, hours, and working conditions through collective

bargaining and project labor agreements.

Amici (collectively referred to herein as the “Pipeline Crafts”) represent the thousands of union work-

ers who would perform all aspects of pipeline construction on the PennEast Pipeline (the “Project” or

the “Pipeline”). Penn

East has committed to constructing the Pipeline under the terms of the National Pipeline Agreement (“NPLA”), a collective-bargaining agreement that would require contractors

hired to construct the Pipeline to utilize members of

the Pipeline Crafts to perform the work. The NPLA

requires contractors to pay wages that allow workers

to earn a high standard of living, health benefits for

themselves and their families, and pension contributions for all hours worked. Under the NPLA, employers also make hourly contributions to training

funds jointly run by the Pipeline Crafts and signatory contractors, which ensure that workers are up-todate on the skills necessary to build the safest pipelines and allow new members to enter the trade and

develop those skills.

The Petitioner and Respondents have consented to

the filing of this brief.

SUMMARY OF ARGUMENT

Section 7(h) of the Natural Gas Act (“NGA”) grants

“the right of eminent to domain” to “any holder of a

certificate of public convenience and necessity” issued

by the Federal Energy Regulatory Commission

(“FERC”) in order to secure “the necessary land or

other property” to build, operate, and maintain natural gas infrastructure. 15 U.S.C. § 717f(h). For decades, this transfer of “the right of eminent domain”

to private companies was understood by all involved

to include the right to use eminent domain over private and State-owned land alike. The text, statutory

history, and context of Section 7(h), as well as related

precedent, confirm that this interpretation was correct. The full grant of eminent domain to natural gas

companies is an extension of federal power and was

added to the NGA in recognition of private companies’ necessary role in developing U.S. natural gas

infrastructure.

Nevertheless, the Third Circuit, in its decision below, incorrectly held that a State’s 11th Amendment

sovereign immunity prevents a private company

from initiating a condemnation proceeding concerning State land despite the NGA’s grant of the federal

government’s power of eminent domain to such companies. The decision below thus allows any State,

on its own initiative, to block construction of a project permitted under the NGA for any reason or for

no reason at all, as long as the State has an ownership interest in any of the land needed for the project. It thus seriously dilutes the NGA’s grant of the

federal eminent domain authority to private companies seeking to construct necessary natural gas infrastructure and renders it useless as to lands in

which a State has a property interest. It effectively

allows States to reject the reasoned, statutorilyguided judgment of FERC in favor of their own evaluation of a project, which need not be based on anything other than politics.

This result directly conflicts with federal policy favoring efficiency in the pipeline approval process. It

will have serious and long-lasting negative consequences not only for natural gas companies, but also

for the socioeconomic welfare of thousands of American workers and consumers, and the overall condition of U.S. energy infrastructure in the immediate

and long-term future. Amici urge the Court to grant

certiorari on the petition in order to restore the correct interpretation and application of the NGA so that

approval and construction of natural gas infrastructure remains accessible and efficient going forward.

ARGUMENT

I. THE DECISION BELOW CONFLICTS WITH

THE ORDINARY MEANING OF THE NATURAL GAS ACT.

Statutory words and phrases must be interpreted

according to their “ordinary meaning . . . as understood when the [statute] was enacted.” Carcieri v.

Salazar, 555 U.S. 379, 388 (2009). See also Director,

Officer of Workers’ Comp. Programs, Dep’t of Labor v.

Greenwich Collieries, 512 U.S. 267, 275 (1994) (“This

Court presumes that Congress intended [a statutory]

phrase to have the meaning generally accepted in the

legal community at the time of enactment.”). Any such

interpretation “depends upon reading the whole statutory text, considering the purpose and context of the

statute, and consulting any precedents or authorities

that inform the analysis.” Dolan v. U.S. Postal Service, 546 U.S. 481, 486 (2006).

In this case, Section 7(h) of the Natural Gas Act establishes a procedure under which “any holder of a

certificate of public convenience and necessity” that is

unable to agree on compensation for “the necessary

right-of-way” and “the necessary land or other property” to fulfill the certificate, “may acquire the same

by the exercise of the right of eminent domain.” 15

U.S.C. § 717f(h) (emphasis added). This grant of the

power of eminent domain is unqualified, providing no

special rule applicable to State-owned lands.

Furthermore, it is clear that Congress understood

“the right of eminent domain” to include the right to

file a condemnation suit against a State. By the time

Congress added Section 7(h) to the NGA, it was well

established that “[t]he right of the United States to

exercise the power of eminent domain is ‘complete in

itself’ and ‘can neither be enlarged nor diminished by

a State.’ ” U. S. ex rel. & for Use of Tennessee Valley

Auth. v. Powelson, 319 U.S. 266, 279 (1943) (quoting

Kohl v. United States, 91 U.S. 367, 374 (1875)). See

also Kohl, 91 U.S. at 374 (holding that no State may

“prescribe the manner in which [eminent domain]

must be exercised. The consent of a State can never be

a condition precedent to its enjoyment. Such consent

is needed only, if at all, for the transfer of jurisdiction

and of the right of exclusive legislation after the land

shall have been acquired.”). Therefore, when Congress gave private parties “the . . . right of eminent

domain” in Section 7(h) of the NGA, the ordinary

meaning of that grant included the limitation on

States’ ability to resist it.

In addition, the context and purpose of Section 7(h)

clearly show that Congress intended for it to authorize

private certificate holders to utilize eminent domain

against States and private entities alike, on the same

basis as the federal government. The legislative history

is replete with evidence that Congress intended for Section 7(h) to give private companies that right specifically because States, at the time, were interfering with

private pipeline companies’ attempts to construct natural gas pipelines that had received certificates of public

convenience and necessity from FERC and for the purpose of preventing States from doing so. See Petition for

Writ of Cert. at 6-11; FERC Declaratory Order, 170

FERC ¶ 61,064, Dkt. No. RP20-41-000, ¶¶ 40-41 (Jan.

30, 2020) (hereinafter, “FERC Decl. Order”).

One need look no further for this context and purpose than the Senate Committee on Interstate and

Foreign Commerce’s report recommending passage of

Section 7(h). The Committee’s report presents, as the

sole justification for its recommendation, the problem

of States denying certificate holders the right to construct natural gas pipelines. See S. Rep. No. 80-429

(1947). Thus, the Committee recommended that Congress, “in carrying out its constitutional authority to

regulate interstate commerce should correct . . . the

[NGA] by passage of . . . the right of eminent domain

[for] those natural gas companies which have qualified under the [NGA] to carry out and perform the

terms of any certificate of public convenience and necessity.” Id. at 3. The Committee’s report concludes

that it would “defeat[] the very objectives of the

[NGA],” and FERC’s “exclusive jurisdiction to regulate the transportation of natural gas in interstate

commerce,” if States could “nullif[y]” FERC’s certificates by withholding or requiring additional conditions before granting certificate holders the right of

eminent domain. Id. at 3-4. And yet, 73 years later,

this is the exact outcome the Third Circuit’s decision

yields.

Until the Third Circuit’s decision below, parties involved in eminent domain under the NGA have generally accepted private companies’ ability to utilize it to

obtain all property rights needed—whether from a private party or the State. When the question arose before FERC, the Commission has always held that “the

eminent domain grant to persons holding . . . certificates [under the NGA] applies equally to private and

State lands.” FERC Decl. Order at 27-30 (quoting Tenneco Atlantic Pipeline Co., 1 FERC ¶ 63,203-04 (1977)).

Finally, Congress’s intent and purpose to give certificate holders the full power of eminent domain under Section 7(h) is apparent from other statutory

grants of eminent domain that specifically limit the

use of eminent domain by private parties over State

lands. The Federal Power Act (“FPA”) is the most re-

vealing example of this limiting language. Section 7(h)

of the NGA was modeled after Section 21 of the FPA,

16 U.S.C. § 814, which allows a private licensee of a

Commission-approved hydroelectric project to utilize

eminent domain for lands necessary to construct,

maintain, or operate the facility. See S. Rep. No. 80429 at 1. In 1992, Congress passed the Energy Policy

Act of 1992, which, in part, amended Section 21 of the

FPA to carve out “any lands or other property that,

prior to the date of enactment of the Energy Policy Act

of 1992, were owned by a State or political subdivision

thereof and were part of or included within any public

park, recreation area or wildlife refuge established under State or local law” from the lands over which a

hydropower licensee may exert eminent domain. Pub.

L. No. 102-486, 106 Stat. 2776 (1992).1 If Congress

understood the 11th Amendment to prohibit certificate

holders under the NGA and similar laws from bringing

condemnation proceedings against States, the 1992

amendment to the FPA would be unnecessary and confusing.2 See Advocate Health Care Network v. Stapleton, 137 S.Ct. 1652, 1659 (2017) (explaining that “the

presumption [is] that each word Congress uses is there

for a reason” and correct statutory interpretation seeks

to “give effect, if possible to every clause and word of a

statute”). Regardless, Congress did not then nor has it

since added a similar limitation to the NGA.

The hydropower licensee, may, however, still exert eminent

domain over such lands after a public hearing in the affected

community and a finding by FERC that “the license will not interfere or be inconsistent with the purposes for which such lands

or property are owned.” Pub. L. 102-486, 106 Stat. 2776 (1992).

See also H.R. Rep. No. 102-474, 99-100 (1992) (explaining

that the original text of Section 21 of the FPA “granted a Federal

power of eminent domain . . . includ[ing] the power to condemn

lands owned by States”).

In the decision below, the Third Circuit found that

“nothing in the text of the NGA suggests” that Congress intended the NGA to give private companies the

right to bring condemnation suits against States. In

re PennEast Pipeline Co. LLC, 938 F.3d 96, 100 (3d

Cir. 2019). This statement misinterprets the ordinary

language of the NGA and ignores the normal rules of

statutory interpretation that take into account the

context and purpose of the statute and relevant, related precedent. This Court should grant review to

correct the Third Circuit’s errors of interpretation and

restore the eminent domain rights Congress intended

to give certificate holders under the NGA.

II. THE DECISION BELOW INTERFERES WITH

THE NGA’S PURPOSE TO FACILITATE

RELIABLE AND EFFICIENT NATURAL GAS

SUPPLY NATIONWIDE.

In the words of FERC, the Third Circuit’s decision

would “allow States to nullify the effect of Commission orders affecting State land—and, apparently, private land in which the State has an interest—through

the simple expedient of declining to participate in an

eminent domain proceeding brought to effectuate a

Commission certificate.” FERC Decl. Order at 43.

Not only does this result go against the text, purpose,

and context of the NGA, see Section I supra, but it also

threatens the public interest—at the heart of the

NGA—in ensuring reliable and affordable access to

natural gas across the nation.

The NGA’s principal purpose is to serve the “public

interest” by “promot[ing] the orderly production of

plentiful supplies of . . . natural gas at just and reasonable rates.” NAACP v. Fed. Power Comm’n, 425

U.S. 662, 670 (1976). To serve this goal, the NGA requires any company proposing to build new or expand

existing interstate natural gas infrastructure to obtain a certificate of public convenience and necessity

from FERC before doing so. 15 U.S.C. § 717f. The

procedure to obtain a FERC certificate is long and detailed. It requires FERC to find that the proposed action “is or will be required by the present or future

public convenience and necessity” and empowers

FERC to “attach to the . . . certificate and to the exercise of the rights granted thereunder such reasonable

terms and conditions as the public convenience and

necessity may require.” 15 U.S.C. § 717f(e).

FERC’s authority over the certificate continues indefinitely and controls virtually all aspects of the certificate holder’s operations. See Schneidewind v. ANR

Pipeline Co., 485 U.S. 293, 300-01 (1988) (“The NGA

confers upon FERC exclusive jurisdiction over the

transportation and sale of natural gas in interstate

commerce for resale.”). For example, FERC controls

the rates that may apply to natural gas transportation. 15 U.S.C. § 717c. It also has the authority to

ensure that a project is financed in accordance with

the public interest and requires companies to file statements of their financing plans and any proposed issuance of securities. 18 C.F.R. § 157.14(a)(15). Officers

and directors of natural gas companies are prohibited

from profiting from the company’s issuance of securities. 15 U.S.C. § 717k. Certificate holders must also

continue the flow of gas indefinitely and cannot abandon any service or facility without FERC finding that

either the available gas supply is depleted or “the present or future public convenience or necessity permit

such abandonment.” 15 U.S.C. § 717f(b). In the words

of this Court, “the flow of gas [is] a service obligation

imposed by the [NGA].” California v. Southland Royalty, 436 U.S. 519, 525 (1978) (explaining that a natural gas company may not terminate the flow of natural

gas even after its private contract to supply the natural gas terminates without FERC approval).

Congress’s delegation of plenary control over the

flow of natural gas and the infrastructure that transports it to FERC through the NGA reinforces its intention that private certificate holders are meant to

constitute an arm of FERC with eminent domain authority equivalent to the federal government. Indeed,

neither FERC nor any other arm of the federal government exercises the federal eminent domain power

to build interstate natural gas infrastructure because

Section 7(h) only authorizes “any holder of a certificate of public convenience and necessity” to do so. See

FERC Decl. Order at 38-39. Section 7(h)’s grant of

eminent domain to natural gas companies is thus necessary to fulfill the NGA’s purpose of ensuring an adequate and affordable supply of natural gas nationwide. See PennEast Pipeline Co., LLC, 164 FERC

¶ 61,098 at 29 (2018). See also Thatcher v. Tennessee

Gas Transmission Co., 180 F.2d 644, 647 (5th Cir.

1950) (“There is no novelty in the proposition that

Congress in furtherance of its power to regulate commerce may delegate the power of eminent domain to a

corporation, which though a private one, is yet, because of the nature and utility of the business functions it discharges, a public utility . . . .”).

In the decision below, the Third Circuit ignores this

carefully arranged relationship between FERC and

private companies under the NGA. By allowing States

to avoid condemnation proceedings for any reason or

for no reason at all, the Third Circuit’s decision threatens to create large areas of the United States where

natural gas infrastructure cannot be built without going to extreme lengths to avoid land in which a State

has any interest. The Third Circuit’s holding on this

point is especially broad and alarming in that it allowed New Jersey to resist condemnation of all its

“property interests” subject to the certificate, including only two parcels in which New Jersey held a “possessory interest” and 40 in which New Jersey held

“non-possessory interests—most often, easements requiring that the land be preserved for recreational,

conservation, or agricultural use.” PennEast Pipeline

Co., 938 F.3d at 100-101.3 The Third Circuit, itself,

acknowledged that its holding “may disrupt how the

natural gas industry, which has used the NGA to construct interstate pipelines over State-owned land for

the past eighty years, operates.” Id. at 113.

As such, the Third Circuit’s decision stands in direct opposition to the bipartisan policy goal of timely

and reliable authorization and construction of natural

Land directly owned by the State includes all State roads and

bottoms of navigable water bodies and so would be difficult for a

company to avoid in planning natural gas infrastructure, and especially in the context of a pipeline. FERC Decl. Order at 43-44

n.221. Land in which the State has a non-possessory interest

would be even more difficult to avoid. See Br. of Amici Curiae Interstate Natural Gas Assoc. of Am., et al, at 31-32, In re PennEast

Pipeline Co., No. 19-1191, Doc. 3113239304 (3d Cir. May 15, 2019)

(observing that New Jersey has acquired interests in over 850,000

acres of land (the equivalent of 1,300 square miles) through its

Green Acres Program and the State Agricultural Development

Committee’s activities related to farmland and that selling or donating a property interest through the Green Acres Program is as

simple as filling out a two-page form, which is available online).

See also Plaintiff’s Response in Support of its Motion for an Order

of Condemnation and for Preliminary Injunction at 6, Columbia

Gas Transmission, LLC v. 0.12 Acres of Land, More or Less, No.

1:19-cv-01444-GLR (D.Md. July 8, 2019) (stating that “every single one” of Columbia Gas Transmission’s FERC-regulated interstate pipeline projects in North America, which together transport

gas through nearly 10,000 miles of pipeline in ten States, crosses

and/or collocates with State-owned property or property interests).

gas infrastructure. In 2012, President Obama issued

Executive Order 13604, which recognized the need to

“make pipeline infrastructure a priority, ensuring the

health, safety, and security of communities and the

environment while supporting projects that can contribute to economic growth and a secure energy future.” 77 Fed. Reg. 18887 (Mar. 22, 2012). Executive

Order 13604 encouraged federal agencies to “execute

Federal permitting and review processes with maximum efficiency and effectiveness…[to] provide a

transparent, consistent, and predictable path for both

project sponsors and affected communities.” Id. In

2017, President Trump issued Executive Order 13766,

which reinforced the federal policy of “expedit[ing], in

a manner consistent with law . . . approvals for all infrastructure projects, especially projects that are a

high priority for the Nation, such as . . . pipelines.” 82

Fed. Reg. 8657 (Jan. 24, 2017). Later in 2017, President Trump issued Executive Order 13807, which

calls for “coordinated, consistent, predictable, and

timely” authorization processes “in order to give public and private investors the confidence necessary to

make funding decisions for new infrastructure projects.” 82 Fed. Reg. 40463 (Aug. 15, 2017).

The decision below represents a significant retreat

from these policy goals. By effectively giving States

the power to halt federally-approved natural gas infrastructure projects, the Third Circuit’s interpretation inserts uncertainty and unreliability into a process meant to be streamlined and efficient. Under

these circumstances, it is to be expected that development of U.S. natural gas infrastructure would suffer,

as companies would be discouraged from going through

the lengthy and costly FERC approval process to obtain a certificate of public convenience and necessity

that can be nullified by a State for any reason.

III.

THE DECISION BELOW WOULD HAVE

DETRIMENTAL EFFECTS FOR SKILLED

CONSTRUCTION WORKERS AND LOCAL

COMMUNITIES, WHICH OTHERWISE BENEFIT FROM NEW NATURAL GAS INFRASTRUCTURE.

Natural gas infrastructure produces numerous

tangible benefits in affected communities. As recognized by Congress in passing the NGA, consumers

rely on sound and efficient natural gas infrastructure

to keep supply steady and affordable. At the same

time, the natural gas industry relies upon predictability in the approval process to remain viable. But

it is not only corporate bottom lines that are affected

when natural gas infrastructure projects are blocked

or subjected to extreme uncertainty. Amici represent

the union workers who construct these vital infrastructure projects and rely on their availability to

earn necessary wages and benefits. The economic activity created by construction also ripples through local communities in the form of local spending, tax

revenue, and business development.

A. The Decision Below Threatens the Livelihoods of Thousands of Americans Engaged in Natural Gas Infrastructure

Construction and Skilled Union Job Opportunities in the Industry.

As discussed above, the Third Circuit’s decision effectively allows States to veto natural gas infrastructure projects at the final stage, after projects have received all approvals required under federal and State

law. If these projects are stopped, the jobs they would

normally create—including for the Pipeline Crafts’

members—also do not materialize, causing immense

and widespread harm for American households.

Design and construction of the 115-mile long Penn

East Pipeline alone is anticipated to create more than

12,160 total jobs, including 2,500 direct planning and

construction jobs, with a total of $740 million in wages.

PennEast Pipeline Project Economic Impact Analysis

3, Econsult Solutions, Inc., Drexel Univ. School of Economics (Feb. 2015) (hereinafter “Econsult Report”).4

PennEast has committed to fill these construction jobs

with skilled union workers from the Pipeline Crafts.

The Pipeline Crafts anticipate that its members

would work over 2.45 million hours cumulatively in

constructing the PennEast Pipeline and associated facilities, including necessary metering and compressor

stations. The Pipeline Crafts expect that construction

of the PennEast Pipeline would generate a total of

more than $172 million in wages and fringe benefit

contributions for pipeline workers and their families.

Included in this amount is approximately $120 million

in wages, $25.7 million in payments to provide medical

and accident benefits for pipeline workers and their

families, $25 million in payments to provide retirement, survivor and disability benefits, and $1.5 million

in payments to provide training, education, and safety

programs, including for new entrants to the industry.

These are the exact type of jobs—blue collar, skilled

jobs that provide good wages, health coverage, and

fund their own training—that are so badly needed in

today’s economy. Unfortunately, since delays and obstruction of pipeline permitting have become increasingly common nationwide over the last several years,

members of the Pipeline Crafts have seen a corresponding decline in available jobs. With major mainAfter construction, the pipeline would continue to support a

number of jobs with an annual $8.3 million in wages and a total

annual economic impact of $23 million. Econsult Report at 3.

line pipeline projects on indefinite hold due to these

delays, the Pipeline Crafts experienced a combined

37.6% decline in hours worked under the National

Pipeline Agreement in 2019 compared to 2018.

This type of decline in hours is especially harmful

for specialized pipeline workers, who are impacted severely and immediately by downturns in the industry.

Although pipeline construction jobs are often described

as “temporary,” their temporary nature is exactly what

makes them so important. Every opportunity for work

that is denied is devastating because pipeline construction workers rely on a steady supply of projects to provide complete incomes and retirement savings for

themselves and their families over the course of their

careers. When there is not enough work available,

pipeline construction workers also often lose eligibility

for health insurance through jointly-sponsored union

and employer health plans, which often require a minimum number of hours worked during set time periods, e.g., monthly or annually, to establish and maintain coverage. Similarly, retirement benefits are

computed based on length of time and/or hours worked

and so workers who experience lapses in employment

risk not accumulating sufficient pension benefits to

make ends meet during retirement.

Workers affected by the unavailability of pipeline

jobs may try to get jobs outside of the industry, but

these jobs—especially if they are not covered by a collective bargaining agreement—often do not compare

in terms of wages and benefits to the skilled pipeline

construction jobs for which they have trained. Thus,

to the extent an unemployed pipeline worker is able to

find a replacement job, that job may well provide inferior wages and benefits.

Roadblocks to pipeline construction and a corresponding decline in available jobs also make the Pipe-

line Crafts less able to accept new members and advance the ones they have. When there is a shortage of

jobs or uncertain timelines for permitting, unions cannot accept as many entry-level members as they would

otherwise, preventing those workers from receiving

the training and other benefits available in the unionized pipeline construction industry.

B. The Decision Below Would Deprive Local

Communities of Economic Benefits and

Energy Savings.

Roadblocks to pipeline construction also negatively

impact local communities that would otherwise prosper

from the economic surge accompanying construction

and energy savings from the increased availability of

natural gas. For example, the PennEast Pipeline would

generate an estimated total of $1.62 billion in economic

activity. Econsult Report at 3. It would also create tax

revenue gains in Pennsylvania and New Jersey. During design and construction, it is anticipated that the

Project would be responsible for a total of $17.5 million

in personal income tax in Pennsylvania and New Jersey. Id. at 12. Part of this economic activity and tax

revenue would come from the workers on the pipeline,

who would spend their earnings largely locally, including on lodging and all the necessities of every day life.5

Local consumers also suffer when natural gas infrastructure projects are stopped. Relevant to this

case, Pennsylvania and New Jersey residents both

These economic benefits would not be restricted to the construction period. Operation of the PennEast Pipeline in Pennsylvania and New Jersey would result in a total economic impact of

approximately $23 million on spending on labor, equipment maintenance, and supplies and nearly $200,000 in income tax revenue

to State Governments per year. Econsult Report at 14-15.

pay more for electricity than the nationwide average—20% more than the national average in the case

of New Jersey residents. See Electric Power Monthly

with Data for December 2019 Table 5.6.A, U.S. E.I.A

(Feb. 26, 2020).6 Unaffordable electricity costs are a

serious problem that can have severe consequences

for American households. For example, the U.S. Energy Information Administration found that nearly

one in three U.S. households had faced such difficulty affording the cost of residential energy in 2015

that they had either received a disconnection notice

or been forced to reduce expenditures by keeping

their homes at unhealthy or unsafe temperatures or

by foregoing other basic necessities in order to afford

energy costs. One in Three U.S. Households Faces a

Challenge in Meeting Energy Needs, U.S. E.I.A. (Sept.

19, 2018).7

It is into this environment of energy insecurity that

the PennEast Pipeline would deliver staggering savings to energy consumers. One economic study of the

Project’s expected impact—prepared at the time it

was proposed and the approval process began—shows

that, had the pipeline been part of the local energy

infrastructure during the winter of 2013-2014, when

conditions were especially cold for a prolonged period

of time, consumers in Eastern Pennsylvania and New

Jersey would have saved an estimated $890 million in

energy costs. See Energy Market Savings: Report and

Analysis at 3, Concentric Energy Advisors, Inc. (March

2015).8 Several years later, while tied up in a long

pdf.

https://www.eia.gov/electricity/monthly/current_month/epm.

https://www.eia.gov/todayinenergy/detail.php?id=37072.

https://penneastpipeline.com/ConcentricEconomicStudy/

concentric-economic-study.pdf.

regulatory process, an updated study showed that the

Project would have continued saving consumers money—to the tune of an additional $435 million in savings in the winter of 2017-2018, when demand was

high and natural gas and electric prices were volatile.

Estimated Energy Market Savings from Additional

Pipeline Infrastructure Serving Eastern Pennsylvania

and New Jersey: Update for Winter 2017/2018 at 3,

Concentric Energy Advisors, Inc. (April 2018).9 These

energy savings, in turn, produce economic benefits in

the form of increased economic activity by the affected

consumers. In the case of the PennEast Pipeline, a

different economic study found that every additional

$10 million in disposable income derived from energy

savings could be expected to generate an estimated

$13.5 million of total economic impact and supports

90 jobs. Econsult Report at 16.

Finally, it is worth noting that, to the extent the

Third Circuit’s decision allows States to effectively

foreclose construction of natural gas pipelines and

other infrastructure, it undercuts important federal

policy aimed at developing a modern pipeline infrastructure with the most up-to-date safety and efficiency features. In 2011, the U.S. Department of Transportation’s (“U.S. DOT”) Pipeline and Hazardous

Materials Safety Administration (“PHMSA”) issued a

“call to action” to accelerate the repair, rehabilitation,

and replacement of the highest-risk, aging pipeline infrastructure. See Pipeline Replacement Background,

U.S. DOT PHMSA (last visited March 16, 2020).10

Since that time, the number of pipelines installed behttps://penneastpipeline.com/wp-content/uploads/2018/05/

PennEast_Concentric_Update_FINAL_4-24-2018.pdf.

https://www.phmsa.dot.gov/data-and-statistics/pipelinereplacement/pipeline-replacement-background.

fore 1970 that remain in operation has declined, but

still comprises approximately 33% and 45% of gas distribution mainline and hazardous liquid miles of pipeline, respectively. See Pipeline Replacement Updates,

U.S. DOT PHMSA (last visited March 16, 2020).11

These vintage pipelines are more prone to failure and

inefficiency due to inferior and outdated materials,

welding techniques, and quality control. Id.

In contrast, modern pipelines feature improved pipe

coating to protect against corrosion, welding techniques, seam inspection, pressure testing of pipe before it leaves the mill, and in-place hydrostatic pressure testing and inspection. Modern pipelines also

utilize cutting edge machinery that passes through

the pipe checking for defects like corrosion, cracking,

gouges, dents, and weaknesses in welds, among other

safety risks. Faced with an inability to build new

pipelines under the Third Circuit’s holding, pipeline

operators will have little choice but to keep using aging, less reliable pipelines that lack modern safety

features just to do their best to meet regional energy

needs, to the detriment of consumers and local communities.

Given all of these economic and other benefits of

new natural gas infrastructure and the jobs and opportunities it creates both directly and indirectly, it is

not surprising that federal policy aims to provide efficient and reliable authorization procedures. American workers and communities count on having such

procedures in place. By allowing States to stymie this

clear policy goal, the Third Circuit has done a grave

disservice to American workers and communities.

https://opsweb.phmsa.dot.gov/pipeline_replacement/by_

decade_installation.asp.

CONCLUSION

For the foregoing reasons, Amici respectfully urge

the Court to grant the petition and review the decision

below.

Respectfully submitted,

ellen o. Boardman*

Anna frIedlander

MIChael A. GIllman

o’Donoghue & o’Donoghue LLP

5301 Wisconsin Avenue, NW

Suite 800

Washington, DC 20015

(202) 362-0041

*Counsel of Record

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.