Amicus Curiae Brief — PennEast Pipeline Company, LLC, Petitioner v. New Jersey, et al.
Supreme Court briefMar 23, 2020
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No. 19-1039
In the
Supreme Court of the United States
__________________
PENNEAST PIPELINE COMPANY, LLC,
Petitioner,
v.
NEW JERSEY, ET AL.,
Respondents.
__________________
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit
__________________
BRIEF OF AMICUS CURIAE CONSUMER
ENERGY ALLIANCE IN SUPPORT OF
PETITIONER
__________________
VICTORIA B. KUSH
BUCHANAN INGERSOLL &
ROONEY PC
Union Trust Building
501 Grant Street, Suite 200
Pittsburgh, PA 15219
412-562-1694
Victoria.Kush@bipc.com
HALA A. SANDRIDGE
Counsel of Record
BUCHANAN INGERSOLL &
ROONEY PC
SunTrust Financial Centre
401 East Jackson Street,
Suite 2400
Tampa, FL 33602
813-222-1127
Hala.Sandridge@bipc.com
Counsel for Amicus Curiae
March 23, 2020
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii
IDENTITY AND INTEREST OF
AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I.
America Will Continue to Rely on Natural
Gas for Affordable Energy. . . . . . . . . . . . . . . . 7
II.
Restricting Access to Natural Gas Will
Disproportionately Hurt Low-Income U.S.
Households. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
III.
Pipeline Infrastructure Has and Will
Continue to Support Economic and Industrial
Growth In Pennsylvania and New Jersey . . 12
IV.
Natural Gas Is the Leading Cause For
America’s Reduced Emissions and Improved
Air Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ii
TABLE OF AUTHORITIES
OTHER AUTHORITIES
2017-2018 Energy Savings Update, PENNEAST
PIPELINE (July 11, 2018), available at
https://penneastpipeline.com/wpcontent/uploads/2018/07/PennEast_ConcentricHandout_8.5x11_rev2.pdf. . . . . . . . . . . . . . . . . . 17
About LIHEAP, U.S. DEPARTMENT OF HEALTH &
H UMAN S ERVICES A DMINISTRATION FOR
CHILDREN & FAMILIES OFFICE OF COMMUNITY
SERVICES, http://www.acf.hhs.gov/ocs/programs/liheap
/about (last reviewed Mar. 29, 2017) . . . . . . . . . 11
Annual Energy Outlook 2016, U.S. ENERGY
INFORMATION ADMINISTRATION (Aug. 2016),
available at http://www.eia.gov/forecasts/aeo/
pdf/0383(2016).pdf . . . . . . . . . . . . . . . . . . . . . . . . 7
Annual Energy Outlook 2020 - Natural Gas, U.S.
ENERGY INFORMATION ADMINISTRATION (Jan. 29,
2020), available at https://www.eia.gov/outlooks/
aeo/pdf/AEO2020%20Natural%20Gas.pdf. . . . . . 7
Economic Impact of the PennEast Pipeline’s
Construction and Operation, PENNEAST
PIPELINE, available at https://penneastpipeline.
com/wp-content/uploads/2015/03/drexel-factsheet.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Energy Security, INTERNATIONAL ENERGY AGENCY,
http://www.iea.org/topics/energysecurity/ . . . . . . 7
iii
Frequently Asked Questions: What is U.S. electricity
generation by energy source?, U.S. ENERGY
INFORMATION ADMINISTRATION,
http://www.eia.gov/tools/faqs/faq.cfm?id=427&t
=3 (last visited Mar. 22, 2020) . . . . . . . . . . . . . . 19
Fulfilling America’s Pledge: How States, Cities, and
Business Are Leading the United States to a
Low-Carbon Future, BLOOMBERG
P HILANTHROPIES (2018), available at
https://www.bbhub.io/dotorg/sites/28/2018/09/F
ulfilling-Americas-Pledge-2018.pdf . . . . . . . . . . 18
Josh Geyer, Evidence Matters, U.S. DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT 4 (Summer
2011), available at https://www.huduser.gov/port
al/periodicals/em/EM_Newsletter_Summer_20
11_FNL.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Impact of EPA’s Regulatory Assault on Power
Plants: New Regulations to Take More than 72
GW of Electricity Generation Offline and the
Plant Closing Announcements Keep Coming…,
INSTITUTE FOR ENERGY RESEARCH,
http://instituteforenergyresearch.org/wpcontent/uploads/2014/10/Power-Plant-UpdatesFinal.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
John Krohn & Katie Teller, New Pipeline projects
increase Northeast natural gas takeaway
capacity, U.S. E N E R G Y I N F O R M A T I O N
ADMINISTRATION (Jan. 28, 2016),
http://www.eia.gov/todayinenergy/detail.php?id
=24732 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
iv
LIHEAP and WAP Funding, LIHEAP
CLEARINGHOUSE, https://liheapch.acf.hhs.gov/
Funding/funding.htm . . . . . . . . . . . . . . . . . . . . . 11
Catherine Little, Regulation of Oil and Natural Gas
Pipelines: A Legal Primer for the Layman, 235
PIPELINE & GAS JOURNAL, (Mar. 2008) . . . . . . . . 6
Anya Litvak, Where are those good paying energy
jobs? Right here., PITTSBURG POST-GAZETTE
(May 14, 2018), available at http://www.postgazette.com/powersource/companies/2018/05/1
4/Pittsburgh-good-paying-energy-jobs/stories/
201805130044 . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Robert Lyman, Why Renewable Energy Cannot
Replace Fossil Fuels By 2050, FRIENDS OF
SCIENCE (May 30, 2016), available at
https://www.heartland.org/_templateassets/documents/publications/why-renewableenergy-cannot-replace-fossil-fuels-by-2050-may30-2016-final-w-comparison.pdf. . . . . . . . . . . . . . 8
Allen McFarland, Energy-related CO2 emissions for
first six months of 2016 are lowest since 1991,
U.S. ENERGY INFORMATION ADMINISTRATION,
(Oct. 12, 2016) http://www.eia.gov/todayinenergy
/detail.php?id=28312. . . . . . . . . . . . . . . . . . . . . . . 9
Phil McKenna, Global Emissions Rose in 2017, But
U.S. and China Both Made Progress, INSIDE
CLIMATE NEWS (Mar. 22, 2018),
https://insideclimatenews.org/news/22032018/g
lobal-carbon-emissions-data-clean-energymarket-fossil-fuels-trends-iea-report-parisclimate-agreement . . . . . . . . . . . . . . . . . . . . . . . 18
v
National Energy Assistance Survey, NATIONAL
ENERGY ASSISTANCE DIRECTORS’ ASSOCIATION
(Nov. 2011) available at https://neada.org/wpcontent/uploads/2013/05/NEA_Survey_Nov11.p
df . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Natural Gas and Oil Fuel New Jersey, AMERICAN
P E T R O L E U M I N S T I T U T E , availabl e at
https://www.api.org/~/media/Files/Policy/Jobs/
Economics-Nat-Gas-Oil/API_OilEconomy
_New_Jersey.pdf . . . . . . . . . . . . . . . . . . . . . . . . . 13
Natural Gas and Oil Fuel Pennsylvania, AMERICAN
P E T R O L E U M I N S T I T U T E , available at
https://www.api.org/~/media/Files/Policy/Jobs/
Economics-Nat-Gas-Oil/API_OilEconomy_
Pennsylvania.pdf . . . . . . . . . . . . . . . . . . . . . . . . 16
New Jersey’s Manufacturing Industry Sector, NEW
JERSEY DEPARTMENT OF LABOR & WORKFORCE
D EVELOPMENT O FFICE OF R ESEARCH &
INFORMATION BUREAU OF LABOR MARKET
INFORMATION (Winter 2019-2020), available at
https://www.nj.gov/labor/lpa/pub/empecon/adv
mfg.pdf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Paul W. Parfomak, Interstate Natural Gas
Pipelines: Process and Timing of FERC Permit
Application Review, CONGRESSIONAL RESEARCH
SERVICE (Jan. 16, 2015), available at
http://www.fas.org/sgp/crs/misc/R43138.pdf . . . . 6
Pennsylvania State Profile and Energy Estimates,
U.S. ENERGY INFORMATION ADMINISTRATION,
https://www.eia.gov/state/analysis.php?sid=PA . 14
vi
Mark J. Perry, Chart of the day: In 2017, US had
largest decline in CO2 emissions in the world for
9th time this century (July 12, 2018),
https://www.aei.org/carpe-diem/chart-of-the-dayin-2017-us-had-largest-decline-in-co2-emissionsin-the-world-for-9th-time-thiscentury/?utm_content=buffer60126&utm_medi
um=social&utm_source=twitter. . . . . . . . . . . . . 18
Patrick Sabol, From Power To Empowerment,
GROUNDSWELL,
available
at
https://s3.amazonaws.com/groundswell-webassets/documents/frompower_to_empowerment
.pdf (last visited March 22, 2020). . . . . . . . . . . . 10
Sean Sullivan, PennEast Pipeline sends highpowered legal team to Supreme Court, S&P
GLOBAL
(Feb.
27,
2020),
https://www.spglobal.com/marketintelligence/e
n/news-insights/latest-news-headlines/penneastpipeline-sends-high-powered-legal-team-tosupreme-court-57316912 . . . . . . . . . . . . . . . . . . . 3
Total Energy Price and Expenditure Estimates,
Ranked by State, U.S. ENERGY INFORMATION
A DMINISTRATION (2017), available at
https://www.eia.gov/state/seds/sep_sum/html/p
df/rank_pr.pdf . . . . . . . . . . . . . . . . . . . . . . . . 13, 15
Eugene M. Trisko, Energy Expenditures by
American Families, AMERICAN COALITION FOR
CLEAN COAL ELECTRICITY (June 2016),
http://www.americaspower.org/wpcontent/uploads/2016/06/Family-Energy-Costs2016.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
vii
U.S. Federal Poverty Guidelines Used to Determine
Financial Eligibility For Certain Federal
Programs, U.S. DEPARTMENT OF HEALTH &
HUMAN SERVICES OFFICE OF THE ASSISTANT
SECRETARY FOR PLANNING AND EVALUATION
(Jan. 8, 2020), available at https://aspe.hhs.gov/pover
ty-guidelines . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15
Olivia Wein, The Low Income Home Energy
Assistance Program (LIHEAP), NATIONAL LOW
INCOME HOUSING COALITION 5-27 (2016)
available at http://nlihc.org/sites/default/files/
2016AG_Chapter_5-8.pdf . . . . . . . . . . . . . . . . . . 11
World Energy Outlook 2016, INTERNATIONAL
ENERGY AGENCY (Nov. 16, 2016) available at
https://www.iea.org/reports/world-energyoutlook-2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Joanne Zulinski, U.S. Leads in Greenhouse Gas
Reductions, but Some States Are Falling Behind,
ENVIRONMENTAL AND ENERGY STUDY INSTITUTE
(Mar. 27, 2018), https://www.eesi.org/articles/vie
w/u.s.-leads-in-greenhouse-gas-reductions-butsome-states-are-falling-behind. . . . . . . . . . . . . . 18
1
IDENTITY AND INTEREST
OF AMICUS CURIAE
Pursuant to Supreme Court Rule 37, Consumer
Energy Alliance (CEA) respectfully submits this brief
amicus curiae in support of the Petitioner.1
CEA is a national trade association with
membership comprised of a diverse group representing
families, businesses and various industries, including
labor, manufacturing, agriculture, small business and
conservation organizations. Our mission is to work
alongside dedicated citizens and community leaders
nationwide, advocating for sensible energy and
environmental policies for all consumers by providing
sound, unbiased information.
Since its inception in 2006, CEA has helped advance
the needs of individuals, families, and businesses, both
large and small who have been forgotten in the energy
debate, mostly those who can least afford to pay more
for fuel and utility bills, but others who are struggling
to meet payroll and keep their doors open.
1
Counsel of record for all parties have consented in writing to the
filing of this brief. Sup. Ct. R. 37.2 (a). Petitioner received notice
at least 10 days prior to the due date of amicus curiae’s intention
to file this brief and filed a blanket consent. Respondents received
belated notice of the intention to file this brief due to amicus
curiae’s misunderstanding that consent of all parties had been
obtained and its delay in retaining counsel of record; but despite
this, Respondents graciously gave express consent to file. No
counsel for a party authored this brief in whole or in part, and no
counsel or party made a monetary contribution intended to fund
the preparation or submission of this brief. No person other than
amicus curiae, its members, or its counsel made a monetary
contribution to its preparation or submission. See Sup. Ct. R. 37.6.
2
CEA’s individual members are those, like each of
our friends and neighbors who, each and every day, are
trying to make a living, provide for their families and
employees, and contribute to society. Our
organizational members include a collection of
companies from across the U.S. that employ people,
grow and raise the food we eat, and produce and sell
the goods that all Americans use and rely on daily.
They are farmers, academia, conservation groups,
truck drivers, laborers, trades-people, energy
producers, manufacturers, and small business owners.
As an organization advocating for consumers across
this nation, CEA continues to stand by its commitment
to ensuring families – especially low-income individuals
and those on fixed incomes or living paycheck-topaycheck – and businesses trying to meet budgets and
payrolls are able to access the energy they need.
CEA submits it amicus curiae out of concern that
blocking energy infrastructure projects, such as the
Penn East Pipeline, threatens the future of America’s
energy reliability and supply, thereby increasing costs
of energy for consumers and creating significant
economic hardship; and leveling disproportionate harm
to those in poverty, on fixed incomes and society’s
margins.
3
SUMMARY OF ARGUMENT
CEA agrees with Petitioner that the Third Circuit
decision impacts the nation’s economy and energydelivery infrastructure far beyond this specific project.
Further, the Third Circuit’s decision has the potential
to increase energy costs to families and businesses,
impede manufacturing and industrial projects, reduce
high-paying labor jobs, and deprive mineral right’s
owners of their ability to realize their property rights.2
CEA believes that the question presented in this case
must be answered in the affirmative as matter of sound
public policy and to ensure that America’s energy and
economic future is secure.
Energy and its derivative products help make or are
imbedded into just about everything that touches our
lives on a daily basis, including the clothes we wear,
the cars we drive, the shampoo we use, the carpet we
walk on and the medication we take. Energy helps
power every imaginable American industry, and it’s a
must-have ingredient for a robust, fast growing
economy – perhaps the most important ingredient.
What is often overlooked is just how vital pipelines
are for moving transportation fuels from the wellhead
to the refiner and from the refiner to the consumer. It
is also often underappreciated that about half of the
homes in the U.S. use natural gas as their primary
heating fuel and that 22 percent of homes in the
2
Sean Sullivan, PennEast Pipeline sends high-powered legal team
to Supreme Court, S&P G LOBAL (Feb. 27, 2020),
https://www.spglobal.com/marketintelligence/en/newsinsights/latest-news-headlines/penneast-pipeline-sends-highpowered-legal-team-to-supreme-court-57316912.
4
Northeast use heating oil. Pipelines are also essential
for delivering natural gas for power generation, since
natural gas generates nearly 40 percent of the nation’s
electricity supply.
Eliminating the primary transportation method for
such an essential energy source will threaten the
reliability of our country’s electric grid and create more
economic hardship for the 43 million living on a fixed
income or below the poverty line who already spend too
much of their disposable income for energy.
Efforts to thwart pipeline and similar energy
infrastructure projects that would transmit power from
wind or solar will result in increasing costs of energy
for consumers, creating significant economic hardship,
and do disproportionate harm to those in poverty and
on and fixed incomes. It will lead to lost jobs in
manufacturing, energy, transportation, mining,
agriculture and other industries. It will create a
competitive disadvantage for the United States with
low-cost global competition in areas such as
manufacturing, steel production and petrochemicals.
We must have a rational permitting process that
ensures we can bring energy projects online regardless
it is natural gas, wind, solar or other resource.
America’s national pipeline infrastructure is a
critical part of the nation’s energy lifeline, much like
blood vessels and arteries are vital to the functioning of
the human body. As the continued retirement of coalfired generation facilities occurs, domestically produced
natural gas is expected to play a larger role in meeting
our future energy needs through electricity generation
5
and other critical uses.3 Allowing the Third Circuit
decision to stand could contribute to the elimination of
planned natural gas midstream and pipeline
infrastructure projects that are critical for future
residential electricity and home heating needs.
CEA argues in support of the Petitioner’s position
because an affirmative answer to the question
presented is good for the American consumer. Our
country relies on pipeline infrastructure to promote
economic growth, job creation, and even environmental
stewardship.
Further, failure to support Petitioner’s position
would create an undue hardship on the transport and
transmission of all forms of energy – including wind
and solar. Natural gas actually complements and
supports the expansion of renewable resources because
of its quick-start capability. Since all energy sources
require some need for infrastructure to bring the
energy from where is it generated to where it is needed,
upholding the Third Court’s decision would have a
chilling effect on the United States’ ability to meet our
growing energy needs in any form that energy may be
produced.
It is for these reasons that the Federal Energy
Regulatory Commission’s declaratory order on January
30, 2020 was correct as it supported a traditional and
3
Impact of EPA’s Regulatory Assault on Power Plants: New
Regulations to Take More than 72 GW of Electricity Generation
Offline and the Plant Closing Announcements Keep Coming…,
INSTITUTE FOR ENERGY RESEARCH, http://instituteforenergyresear
ch.org/wp-content/uploads/2014/10/Power-Plant-Updates-Final.pdf
(last visited Mar. 22, 2020).
6
necessary understanding of the use of eminent domain
under the Natural Gas Act.4
4
Under the Natural Gas Act, the Federal Energy Regulatory
Commission (FERC) authorizes new interstate natural gas
infrastructure projects. Before approvals to build or expand
infrastructure are granted, FERC requires companies to obtain a
certification of “public conveyance and necessity.” This rigorous
oversight process covers several years of public hearings and
information submissions to FERC for planning, construction,
economic assessments, environmental and cultural heritage
assessments/reviews and a pre-filing process that can trigger
voluminous and lengthy federal assessments like Environmental
Impact Statements. See Paul W. Parfomak, Interstate Natural Gas
Pipelines: Process and Timing of FERC Permit Application Review,
CONGRESSIONAL RESEARCH SERVICE, 1-2 (Jan. 16, 2015), available
at http://www.fas.org/sgp/crs/misc/R43138.pdf. In addition, FERC
requires pipeline companies to enter into long-term customer
commitments, or firm contracts from customers for capacity, before
construction can begin. Although all interstate pipelines have a
federal safety regulator – the Pipeline and Hazardous Materials
Safety Administration – there is no single federal siting authority
for interstate petroleum pipelines. While determinations and
approvals for siting a project are made on a state-by-state basis,
petroleum pipelines must obtain a myriad of permits from state
and federal environmental agencies addressing matters including,
but not limited to, wetlands, stormwater, air permits, cultural and
historic preservation, Tribal consultations and potentially
Environmental Assessments or Environmental Impact
Statements. Petroleum pipelines that cross federal land must also
receive permitting approvals. See Catherine Little, Regulation of
Oil and Natural Gas Pipelines: A Legal Primer for the Layman,
235 PIPELINE & GAS JOURNAL 124, (Mar. 2008).
7
ARGUMENT
I.
America Will Continue to Rely on Natural
Gas for Affordable Energy
The United State Energy Information
Administration data forecasts that natural gas will
meet 37 percent of U.S. electricity needs by 2030.5 This
reliance on natural gas will help reduce our nation’s
vulnerability to imports, clean our air and help meet
greenhouse gas emission reduction targets.6 However,
in order to deliver that volume of natural gas to power
plants, factories, homes and rural communities,
natural gas pipeline delivery infrastructure must be
upgraded and expanded.7 Real energy security is not
just the presence of abundant natural resources – it is
the ability to readily access and deliver those resources
at an affordable price.8
In recent years, projects that enable the
development and delivery of fossil fuels have become
5
Annual Energy Outlook 2020 - Natural Gas, U.S. ENERGY
INFORMATION ADMINISTRATION (Jan. 29, 2020), available at
https://www.eia.gov/outlooks/aeo/pdf/AEO2020%20Natural%20G
as.pdf.
6
See Annual Energy Outlook 2016, U.S. ENERGY INFORMATION
ADMINISTRATION (Aug. 2016), available at http://www.eia.gov/fore
casts/aeo/pdf/0383(2016).pdf.
7
See, e.g., John Krohn & Katie Teller, New Pipeline projects
increase Northeast natural gas takeaway capacity, U.S. ENERGY
INFORMATION ADMINISTRATION (Jan. 28, 2016),
http://www.eia.gov/todayinenergy/detail.php?id=24732.
8
Energy Security, INTERNATIONAL ENERGY AGENCY, http://www.iea.
org/topics/energysecurity/ (last visited Mar. 22, 2020).
8
highly vulnerable to delays and disruptions due to
litigation, disputes, complex, and often lengthy, federal
permitting processes and anti-development protests
premised on curtailing energy development and
delivery projects, all of which present obstacles to the
benefits of expanded pipeline capacity and energy
supply.
Coal-fired power generation and mining, natural
gas development, natural gas and petroleum
transportation through pipelines, natural gas-fired
power generation, and emissions-free nuclear power
facilities have been and will continue to be susceptible
to such risks in the months and years ahead. At the
same time, numerous independent analyses and
studies predict that baseload power and energy
provided by fossil fuels and nuclear power will form the
backbone of electricity generation for decades to come
even as we see the substantial expansion of renewable
resources and battery storage technology.9
While promising options like wind and solar
continue to expand at a very significant rate, they
alone will not be able to meet future demand.10 Even
with this expansion of natural gas, the reality of the
current environmental landscape reflects that carbon
9
World Energy Outlook 2016, INTERNATIONAL ENERGY AGENCY
(Nov. 16, 2016) available at https://www.iea.org/reports/worldenergy-outlook-2016.
10
See, e.g., Robert Lyman, Why Renewable Energy Cannot Replace
Fossil Fuels By 2050, FRIENDS OF SCIENCE (May 30, 2016),
a v a i l a b l e a t h t t p s : / / w w w . h e a r t l a nd . o r g / _ t e m p l a t e assets/documents/publications/why-renewable-energy-cannotreplace-fossil-fuels-by-2050-may-30-2016-final-w-comparison.pdf.
9
emissions, the target of many activist organizations,
are down to their lowest levels since 1991 due to
increased U.S. natural gas production.11
II.
Restricting Access to Natural Gas Will
Disproportionately Hurt Low-Income U.S.
Households
Unfortunately, several studies and federal data
highlight the disparate impact that higher energy
prices have on the working poor in the United States.
According to Bureau of Labor Statistics (BLS) data, in
April 2016 the bottom quintile of U.S. households spent
22 percent of their after–tax income on residential
utility bills and gasoline compared to just 5 percent by
the top quintile.12 Renewable energy advocacy group
called Groundswell conducted a recent analysis which
found that the bottom 20 percent of earners spend
almost 10 percent of their income solely on electricity,
more than seven times the portion of income that the
top quintile pays, and 50 percent of all families that
spend 10 percent of income on power bills being
African-American. In addition, the report found that
11
Allen McFarland, Energy-related CO2 emissions for first six
months of 2016 are lowest since 1991, U.S. ENERGY INFORMATION
ADMINISTRATION, (Oct. 12, 2016) http://www.eia.gov/todayinenergy
/detail.php?id=28312.
12
Eugene M. Trisko, Energy Expenditures by American Families,
AMERICAN COALITION FOR CLEAN COAL ELECTRICITY (June 2016),
http://www.americaspower.org/wp-content/uploads/2016/06/Family
-Energy-Costs-2016.pdf.
10
more than half of those energy-insecure households are
below the federal poverty level.13
Many of these individuals live in older, less energy
efficient multifamily housing in more urban areas of
the country or in manufactured housing in rural areas
that can also see tremendously expensive energy bills
relative to overall take-home pay and compared to
other demographics living in single-family housing. The
U.S. Department of Housing and Urban Development
found that 88 percent of multifamily households are
renters with an average annual income ($31,000) that
is just over half that of average homeowners ($61,000).
In other words, the burden of those living in older
and less energy-efficient multifamily housing is being
borne by families with the fewest financial resources.
Consequently, renters typically pay a higher
percentage of their income for energy use and utilities,
with the resulting reduction in discretionary income
making them much more vulnerable to harsh swings in
energy prices. In fact, energy prices increased faster
than housing costs between 2001 and 2009, with
renters in multifamily units experiencing an average
rent increase of 7.6 percent and a 22.7 percent increase
in energy costs.14
13
Patrick Sabol, From Power To Empowerment, GROUNDSWELL,
available at https://s3.amazonaws.com/groundswell-webassets/documents/frompower_to_empowerment.pdf (last visited
March 22, 2020).
14
Josh Geyer, Evidence Matters, U.S. DEPARTMENT OF HOUSING
URBAN DEVELOPMENT 4 (Summer 2011), available at
https://www.huduser.gov/portal/periodicals/em/EM_Newsletter_
Summer_2011_FNL.pdf.
AND
11
The problem of high energy bills disproportionately
hitting the poor has been acute and lingering for many
years, so much so the federal government has a
dedicated funding stream that is appropriated to states
through the Low Income Home Energy Assistance
Program (LIHEAP).15 In 2016, Congress spent well
over $3 billion to provide LIHEAP assistance to
families to help pay energy and heating bills.16 To be
eligible for assistance, families must have incomes at or
below 150 percent of the federal poverty level (about
$30,000 annually for a family of three), or 60 percent of
the state’s median income level. As recently as 2011,
roughly nine million households, or 23 million people,
received LIHEAP assistance.17 Currently, nearly seven
million households depend on LIHEAP to help pay high
home heating and cooling bills.18
According to a coalition of groups supporting
increased programmatic LIHEAP funding, at least 90
15
About LIHEAP, U.S. DEPARTMENT OF HEALTH & HUMAN
SERVICES ADMINISTRATION FOR CHILDREN & FAMILIES OFFICE OF
COMMUNITY SERVICES, http://www.acf.hhs.gov/ocs/programs/liheap
/about (last reviewed Mar. 29, 2017).
16
LIHEAP and WAP Funding, LIHEAP CLEARINGHOUSE,
https://liheapch.acf.hhs.gov/Funding/funding.htm (last visited Mar.
22, 2020).
17
National Energy Assistance Survey, NATIONAL ENERGY
ASSISTANCE DIRECTORS’ ASSOCIATION (Nov. 2011) available at
https://neada.org/wp-content/uploads/2013/05/NEA_Survey_Nov11.
pdf.
18
Olivia Wein, The Low Income Home Energy Assistance Program
(LIHEAP), NATIONAL LOW INCOME HOUSING COALITION 5-27 (2016)
available at http://nlihc.org/sites/default/files/2016AG_Chapter_58.pdf.
12
percent of all LIHEAP recipients have at least one
household member who is a child, elderly or disabled.19
III.
Pipeline Infrastructure Has and Will
Continue to Support Economic and
Industrial Growth In Pennsylvania and
New Jersey
If we examine the two primary states involved in
the PennEast Pipeline project we can see clearly how
natural gas expansion and pipeline development
benefits consumers, businesses, families, and the
economy at large.
Through pipelines and transmission lines, New
Jersey families and businesses have been able to access
clean, abundant and affordable natural gas they need,
saving more than $21.2 billion between 2006 and
2016.20 On average, each resident of New Jersey spent
19
National Energy Assistance Survey, NATIONAL ENERGY
ASSISTANCE DIRECTORS’ ASSOCIATION (Nov. 2011) available at
https://neada.org/wp-content/uploads/2013/05/NEA_Survey_Nov11.
pdf.
20
Calculations show $1.39 billion saved by industrial users, $11.5
billion saved by residential users, and $8.3 billion saved by
commercial users. This number was calculated by using the
annual average price per thousand cubic feet of natural gas for
residential, commercial, and industrial consumers. This EIA price
was then applied to the total MMcf consumed in New Jersey, also
sourced by EIA. The Consumer Price Index (CPI) utilized by the
Bureau of Labor and Statistics was applied to each year’s price in
order to adjust each price to 2016 dollars.
13
$3,323 to meet their energy needs in 2017.21 With ten
percent of the state’s population living at or below the
poverty line, this translates to roughly a quarter of
their income going toward energy expenses.22 The
savings to date have been substantial, but clearly more
capacity is needed to continue to drive prices lower to
the benefit of the financially most vulnerable citizens.
According to a recent study, in 2015 the oil and
natural gas industry contributed 142,200 jobs and
accounted for more than $10 billion in wages for the
State of New Jersey. These jobs represent the truck
drivers, engineers, caterers and contractors who make
oil and gas production and delivery possible. Their
wages invigorate New Jersey’s economy through real
estate, vehicle purchases, and their support for local
small businesses. In total, oil and gas provide nearly
$21 billion to New Jersey’s state economy, including
employee compensation, proprietors’ income, income to
capital owners from property and indirect business
taxes.23
21
Total Energy Price and Expenditure Estimates, Ranked by State,
U.S. ENERGY INFORMATION ADMINISTRATION (2017), available at
https://www.eia.gov/state/seds/sep_sum/html/pdf/rank_pr.pdf.
22
Based upon 2020 HHS Poverty Guidelines. U.S. Federal Poverty
Guidelines Used to Determine Financial Eligibility For Certain
Federal Programs, U.S. DEPARTMENT OF HEALTH & HUMAN
SERVICES OFFICE OF THE ASSISTANT SECRETARY FOR PLANNING AND
EVALUATION (Jan. 8, 2020), available at https://aspe.hhs.gov/pover
ty-guidelines.
23
Natural Gas and Oil Fuel New Jersey, AMERICAN PETROLEUM
INSTITUTE, available at https://www.api.org/~/media/Files/Policy/
Jobs/Economics-Nat-Gas-Oil/API_OilEconomy_New_Jersey.pdf
(last visited Mar. 22, 2020).
14
The billions in savings to the industrial sector are
especially important, as New Jersey is home to some of
the most significant manufacturing and light
manufacturing organizations in the world. These
businesses represent an essential part of New Jersey’s
economy -- and natural gas plays a significant role in
their business. That’s because natural gas is a vital
feedstock to many manufacturing processes including
drying, melting, machine drive, and space heating. In
2016 alone, manufacturing contributed almost $34.3
billion to the state’s economy and employing more than
161,000 workers in the region.24
Pennsylvania is a leading producer of natural gas in
the U.S. and worldwide. Nationwide, Pennsylvania
ranks second - behind Texas - in estimated proved
natural gas reserves, with nearly three-fifths of the
state sitting on top of the prolific Marcellus Shale
natural gas field. And while the state has a large
diversity of fuel sources, half of all Pennsylvanians rely
on natural gas as their primary heating fuel, and a
growing number of electric generation facilities are
utilizing natural gas to power the state. In fact,
electricity accounts for nearly half of the natural gas
consumed in Pennsylvania.25
24
New Jersey’s Manufacturing Industry Sector, NEW JERSEY
DEPARTMENT OF LABOR & WORKFORCE DEVELOPMENT OFFICE OF
RESEARCH & INFORMATION BUREAU OF LABOR MARKET
INFORMATION (Winter 2019-2020), available at
https://www.nj.gov/labor/lpa/pub/empecon/advmfg.pdf.
25
Pennsylvania State Profile and Energy Estimates, U.S. ENERGY
INFORMATION ADMINISTRATION, https://www.eia.gov/state/analysis.
php?sid=PA (last updated Aug. 15, 2019).
15
Pennsylvania natural gas consumers have saved
over $30.5 billion between 2006 and 2016 simply as a
result of the decreasing price of natural gas - with
residential users saving over $13.3 billion, while
commercial and industrial users saved over $17.2
billion.26 These savings can only be realized with
sufficient pipeline infrastructure to deliver to critical
energy to markets and communities. On average,
Pennsylvanians spent $3,434 for their energy needs in
2017.27 For those living at or below the poverty line,
this translates to at least 26 percent of their income
going toward energy expenses.28
Pennsylvania’s abundant energy resources have
spurred economic investment and brought jobs to the
state. A PricewaterhouseCoopers report tallied nearly
322,600 jobs in Pennsylvania that provide nearly $23
26
$9.2 billion saved by industrial users, $13.3 billion saved by
residential users, and $7.9 billion saved by commercial users. This
number was calculated by using the annual average price per
thousand cubic feet of natural gas for residential, commercial, and
industrial consumers. This EIA price was then applied to the total
MMcfs consumed in Pennsylvania, also sourced by EIA. The
Consumer Price Index utilized by the Bureau of Labor and
Statistics was applied to each year’s price in order to adjust each
price to 2016 dollars.
27
Total Energy Price and Expenditure Estimates, Ranked by State,
U.S. ENERGY INFORMATION ADMINISTRATION (2017), available at
https://www.eia.gov/state/seds/sep_sum/html/pdf/rank_pr.pdf.
28
Based upon 2020 HHS Poverty Guidelines. U.S. Federal Poverty
Guidelines Used to Determine Financial Eligibility For Certain
Federal Programs, U.S. Department of Health & Human Services
Office of the Assistant Secretary for Planning and Evaluation (Jan.
8, 2020), available at https://aspe.hhs.gov/poverty-guidelines.
16
billion in wages to Pennsylvanians.29 In 2017, the
median annual salary for an employee at one of
Pennsylvania’s top oil and natural gas producers
exceeded $113,000.30 These wages support local
economies and grow small businesses. In fact, the
report attributed almost $44.5 billion in economic
impact from the state’s oil and gas industry.31
The PennEast Pipeline Project will build on these
strong economic developments in New Jersey and
Pennsylvania by generating a significant positive
economic impact during the construction phase and
after completion. Construction and ongoing operations
of the Project will be economically beneficial to the
counties in which the pipeline would be constructed, as
well as to the region as a whole. The immediate
construction and labor impacts of the Project are
substantial and would greatly benefit local
communities through construction, labor and project
management jobs. The estimated total economic impact
in both states during the design and construction of the
project is $1.62 billion, supporting more than 12,160
29
Natural Gas and Oil Fuel Pennsylvania, AMERICAN PETROLEUM
INSTITUTE, available at https://www.api.org/~/media/Files/Policy/
Jobs/Economics-Nat-Gas-Oil/API_OilEconomy_Pennsylvania.pdf
(last visited Mar. 22, 2020).
30
Anya Litvak, Where are those good paying energy jobs? Right
here., PITTSBURG POST-GAZETTE (May 14, 2018), available at
http://www.post-gazette.com/powersource/companies/2018/05/14/
Pittsburgh-good-paying-energy-jobs/stories/201805130044.
31
Natural Gas and Oil Fuel Pennsylvania, AMERICAN PETROLEUM
INSTITUTE, available at https://www.api.org/~/media/Files/Policy/
Jobs/Economics-Nat-Gas-Oil/API_OilEconomy_Pennsylvania.pdf
(last visited Mar. 22, 2020).
17
jobs with $740 million in wages.32 Additionally,
Concentric Energy Advisors, an independent firm
specializing in energy markets, found the PennEast
Pipeline could have saved New Jersey and eastern
Pennsylvania at least another $435 million this past
winter had it been in service. The estimates
conservatively excluded the peak days, when pricing
was highest.33
IV.
Natural Gas Is the Leading Cause For
America’s Reduced Emissions and
Improved Air Quality
Consumers aren’t, of course, only consumers. They
live and breathe as not only citizens of the United
States but as citizens of the global community. This is
perhaps the greatest oversight in valuing the need for
additional pipeline and energy infrastructure: the
United States because of natural gas, energy efficiency,
new technology, and conservation efforts is leading the
world in cutting air-polluting emissions. Even without
being a signatory to the Paris climate accord, by 2025
the United States will be more than two-thirds of the
way to reaching the targeted emissions reduction of 28
32
Economic Impact of the PennEast Pipeline’s Construction and
Operation, PENNEAST PIPELINE, available at
https://penneastpipeline.com/wp-content/uploads/2015/03/drexelfact-sheet.pdf (last visited Mar. 22, 2020).
33
2017-2018 Energy Savings Update, PENNEAST PIPELINE (July 11,
2018), available at https://penneastpipeline.com/wpcontent/uploads/2018/07/PennEast_Concentric-Handout_8.5x11_
rev2.pdf.
18
percent from 2005 levels, according to Bloomberg
Philanthropies.34
In fact, the United States has pared its annual
carbon dioxide-equivalent output by almost as much as
the entire European Union since 2005, according to
the Environmental and Energy Study Institute.35 Each
year, that works out to a reduction of 760 million
metric tons versus the 770 million for the whole E.U. In
2017, the United States trimmed almost twice as much
carbon dioxide36 from the atmosphere as any other
nation, delivering the single-largest absolute
reduction37 of it. This is occurring while the U.S. is the
number one producer of oil and natural gas and the
number two producer of wind and solar power.
34
Fulfilling America’s Pledge: How States, Cities, and Business Are
Leading the United States to a Low-Carbon Future, BLOOMBERG
PHILANTHROPIES (2018), available at https://www.bbhub.io/dotorg
/sites/28/2018/09/Fulfilling-Americas-Pledge-2018.pdf.
35
Joanne Zulinski, U.S. Leads in Greenhouse Gas Reductions, but
Some States Are Falling Behind, ENVIRONMENTAL AND ENERGY
STUDY INSTITUTE (Mar. 27, 2018), https://www.eesi.org/articles/vie
w/u.s.-leads-in-greenhouse-gas-reductions-but-some-states-arefalling-behind.
36
Mark J. Perry, Chart of the day: In 2017, US had largest decline
in CO2 emissions in the world for 9th time this century (July 12,
2018), https://www.aei.org/carpe-diem/chart-of-the-day-in-2017-ushad-largest-decline-in-co2-emissions-in-the-world-for-9th-timethis-century/?utm_content=buffer60126&utm_medium=social&utm
_source=twitter.
37
Phil McKenna, Global Emissions Rose in 2017, But U.S. and
China Both Made Progress, INSIDE CLIMATE NEWS (Mar. 22, 2018),
https://insideclimatenews.org/news/22032018/global-carbonemissions-data-clean-energy-market-fossil-fuels-trends-iea-reportparis-climate-agreement.
19
The reality is that The United States, New Jersey,
and Pennsylvania will depend on baseload electricity
and fossil fuels to meet its energy for many years and
decades to come. EIA notes that coal, natural gas and
nuclear power made up 81.6 percent of our nation’s
electricity in 2019.38
Despite the tremendous benefits and critical
importance of energy production, court decisions, like
the one held by the Third Circuit, and the theatrics of
unrealistic activists, continue working to eliminate the
production of safe, affordable sources of energy without
offering any solutions that will help meet consumer
demand while also supporting our emissions goals.
Ironically, opposing natural gas expansions and
pipelines will hamper the region’s capability to
buildout and support additional renewable energy
development. One thing is for sure: natural gas plays
a critical role in powering our homes, businesses and
economy. Policymakers, regulators, and leaders must
continue to come together in support our nation’s
homegrown energy production to ensure that our
economy continues to thrive, and hard-working
families, seniors, households, and small businesses can
continue to enjoy the benefits that low prices are
bringing to our communities.
38
Frequently Asked Questions: What is U.S. electricity generation
by energy source?, U.S. ENERGY INFORMATION ADMINISTRATION,
http://www.eia.gov/tools/faqs/faq.cfm?id=427&t=3 (last visited Mar.
22, 2020).
20
CONCLUSION
CEA respectfully requests that the petition for writ
of certiorari is granted. American energy consumers
depend upon this Court’s review to support needed
energy infrastructure, protect vulnerable consumer
populations, facilitate economic growth, and continue
to reduce global emissions.
Respectfully submitted,
HALA A. SANDRIDGE
Counsel of Record
BUCHANAN INGERSOLL & ROONEY PC
SunTrust Financial Centre
401 East Jackson Street, Suite 2400
Tampa, FL 33602
813-222-1127
Hala.Sandridge@bipc.com
VICTORIA B. KUSH
BUCHANAN INGERSOLL & ROONEY PC
Union Trust Building
501 Grant Street, Suite 200
Pittsburgh, PA 15219
412-562-1694
Victoria.Kush@bipc.com
Counsel for Amicus 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.