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

No. 19-1039

In The

Supreme Court of the United States

PennEast Pipeline Company, LLC,

v.

State of New Jersey, et al.,

Petitioner,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF AMICI CURIAE 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

IN SUPPORT OF PETITIONER

Ellen O. Boardman

Counsel of Record

Anna Friedlander

Michael A. Gillman

O’Donoghue & O’Donoghue LLP

5301 Wisconsin Ave, NW

Suite 800

Washington, DC 20015

eboardman@odonoghuelaw.com

(202) 362-0041

Counsel for Amici Curiae

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

49261_Ltrhd.indd

1

6/11/08

12:44:0

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TABLE OF CONTENTS

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

Page

1

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

3

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

5

I. THE THIRD CIRCUIT’S DECISION ESTABLISHES A BROAD PRECEDENT

THAT ALLOWS STATES UNILATERALLY TO NULLIFY FEDERAL PERMITS FOR CONSTRUCTION OF NEW

NATURAL GAS INFRASTRUCTURE....

5

II. THE THIRD CIRCUIT’S DECISION

THREATENS THE LIVELIHOODS OF

THOUSANDS OF AMERICANS WHO

BUILD AND MAINTAIN THE U.S.

NATURAL GAS INFRASTRUCTURE....

7

III. THE THIRD CIRCUIT’S DECISION

WOULD NEGATIVELY IMPACT THE

COUNTRY’S OVERBURDENED AND

AGING NATURAL GAS PIPELINE IN FRASTRUCTURE...................................

11

A. The Third Circuit’s Decision Threatens to Decrease Reliability and Increase Prices for U.S. Natural Gas

Consumers..........................................

12

B. The Third Circuit’s Decision Threatens to Exacerbate Safety Concerns

Associated with the Country’s Aging

and Outdated Natural Gas Infra structure.............................................

14

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

17

iii

TABLE OF AUTHORITIES

Page

Cases

In re PennEast Pipeline Co. LLC, 938

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

6

NAACP v. Fed’l Power Comm’n,

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

16

Statutes & Regulations

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

49 C.F.R. § 192..................................................

16

Other Authorities

Construction Job Quality Across the US

Energy Industries, N. Am.’s Bldg. Trades

Union (2020), https://bit.ly/304KyYO..........

10

Energy Market Savings: Report and Analysis,

Concentric Energy Advisors, Inc. (2015),

https://bit.ly/3kBmBBZ.................................

14

Estimated Energy Market Savings from

Additional Pipeline Infrastructure Serving

Eastern Pennsylvania and New Jersey:

Update for Winter 2017/2018, Concentric

Energy Advisors, Inc. (2018),

https://bit.ly/3sCbrQ1...................................

14

Natural Gas Infrastructure, Nat. Energy

Tech. Lab’y (last visited Mar. 3, 2021),

https://bityl.co/5nFB......................................

13

PennEast Pipeline Project Economic Impact

Analysis, Econsult Sol., Inc., Drexel Univ.

School of Econ. (2015),

https://bit.ly/3b6MjLs....................................

8, 14

PennEast Pipeline Project: Final

Environmental Impact Statement, Fed.

Energy Regul. Comm’n (2017)................. 13, 15, 16

iv

TABLE OF AUTHORITIES—Continued



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

Page

6

Union Workers Prefer Natural Gas, Oil

Sector Employment, Surveys Find,

Marcellus Shale Coal. (July 23, 2020),

http://bit.ly/3uD5PXP...................................

10

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

Information Administration:

Annual Energy Outlook 2021, U.S. Energy

Info. Admin. (2021),

https://bit.ly/3sCOeNI.............................

12

Electricity explained, U.S. Energy Info.

Admin. (last updated Mar. 19, 2020),

http://bit.ly/37IKja6.................................

12

Natural gas explained, U.S. Energy Info.

Admin. (last updated Nov. 30, 2020),

http://bit.ly/2ZO7DiA...............................

12

Natural Gas Infrastructure Implications of

Increased Demand from the Electric

Power Sector, U.S. Energy Info. Admin.

(2015), https://bit.ly/304PZHn.................

13

State Historical Tables for 2019, U.S. Energy

Info. Admin. (last updated Feb. 2021),

https://bit.ly/381uQSC.............................

13

U.S. Department of Transportation, Pipeline &

Hazardous Materials Safety Administration:

Gas Transmission Miles by Decade Installed,

U.S. Dep’t of Transp. Pipeline and

Hazardous Materials Safety Admin.

(last visited Mar. 3, 2021),

https://bit.ly/3pSfVAu..............................

15

1

STATEMENT OF INTEREST

The following parties respectfully submit this brief

as Amici Curiae.1

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.,

No party or counsel for a party authored this brief in whole

or in part. No party, counsel for a party, or person other than

Amici Curiae, their members, or counsel made any monetary contribution intended to fund the preparation or submission of this

brief. All parties have consented to the filing of this brief.

1

2

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, from, and 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 PennEast

pipeline will be constructed. Founded in 1903, LIUNA

is a general workers union representing over half-amillion 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. Many of the workers who the NJ B&CTC rep-

3

resents 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 make job sites safer, deliver apprenticeship and journey-level training, and organize

new workers. The NJ B&CTC supports legislation that

affects working families and assists in securing improved wages, hours, and working conditions through

collective bargaining and project labor agreements.

The above Amici Curiae, collectively referred to

herein as the “Pipeline Crafts” or the “Crafts,” represent the thousands of union workers who would perform all aspects of pipeline construction on the PennEast Pipeline (the “Pipeline”). The Pipeline Crafts

represent workers who would be severely impacted by

the Third Circuit’s decision and the resulting loss of

jobs and associated economic benefits caused by the

abrupt halting of the PennEast Pipeline. And the negative effects of the Third Circuit’s decision would not

be limited to this case. If the decision stands, it would

provide a basis for any State to take the same position

and effectively stop interstate natural gas pipeline

projects at the very last step after all permits have

been obtained, just before construction would begin.

The Pipeline Crafts therefore urge the Court to reverse

the decision below and thus prevent State interference

in the Natural Gas Act (“NGA”) certificate process, as

intended by Congress and expressed in the NGA.

SUMMARY OF ARGUMENT

Section 7(h) of the NGA grants an unqualified “right

of eminent 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

4

build, operate, and maintain interstate natural gas

infrastructure. 15 U.S.C. § 717f(h). The legislative

history of Section 7(h) shows that Congress chose to

amend the NGA to give certificate holders this express

and unqualified right of eminent domain specifically

in order to stop State interference with the building of

FERC-approved interstate natural gas pipelines.

Nevertheless, in its decision below, the Third Circuit incorrectly found that Congress’s grant of eminent domain in the NGA is not equivalent to the federal power of eminent domain and can be trumped by

States’ sovereign immunity under the 11th Amendment. The Third Circuit’s ruling therefore allows a

State to reject FERC’s statutorily-guided decision to

approve a proposed interstate pipeline project in favor

of the State’s own judgment on whether the project

should move forward—the exact result Congress

sought to avoid in enacting Section 7(h).

The Third Circuit’s decision will have serious and

long-lasting negative consequences on the entire natural gas industry, including the many thousands of

union workers who have trained extensively to build

and maintain the natural gas pipeline infrastructure. What makes this result even more frustrating

is the widely-acknowledged fact that the natural gas

infrastructure needs to be upgraded and replaced to

ensure that it can provide reliable and affordable energy to American consumers. The need for new and

upgraded natural gas pipelines is becoming more imperative due to heavy and increasing demand for

natural gas and safety risks posed by the large percentage of the nation’s natural gas pipeline system

that was built 50 or more years ago. These aging

pipelines utilize outdated techniques and technology

that increase the likelihood of leaks and other dan-

5

gers compared to modern pipelines, which feature

advanced materials and technology that enhance

safety and reliability.

The Pipeline Crafts therefore urge the Court to reverse the Third Circuit’s decision in order to fulfill the

NGA’s purpose of streamlining interstate natural gas

pipeline approval under the careful process set forth

in the statute, free from State interference.

ARGUMENT

I. 

THE THIRD CIRCUIT’S DECISION ESTABLISHES A BROAD PRECEDENT THAT ALLOWS STATES UNILATERALLY TO NULLIFY

FEDERAL PERMITS FOR CONSTRUCTION

OF NEW NATURAL GAS INFRASTRUCTURE.

The Third Circuit’s decision establishes a new and

far-reaching interpretation of the NGA under which

States will be able to unilaterally prevent interstate

pipelines from being built, even after those pipelines

have received all required permits and authorizations.

In this brief, the Pipeline Crafts will not repeat all of

the Petitioner’s legal arguments, but do join in them.

The Crafts stress, however, that the Third Circuit’s

interpretation directly conflicts with Congress’s purpose in granting eminent domain authority through

the NGA to ensure that natural gas infrastructure is

built for the public good and specifically that States be

prevented from interfering with that purpose.

Section 7(h) of the NGA grants the “right of eminent

domain” to “any holder of a certificate of public convenience and necessity” issued by FERC for the construction of an interstate natural gas pipeline. 15

U.S.C. § 717f(h). Section 7(h) was not part of the

NGA when it became law in 1938, but was added in

1947 specifically to address the problem of States in-

6

terfering with FERC’s exclusive jurisdiction over interstate natural gas pipelines. The Senate Committee on Interstate and Foreign Commerce’s report

recommending passage of Section 7(h) presented, as

the sole justification for its recommendation, the

problem of States attempting to interfere with certificate holders’ construction of interstate natural gas

pipelines. See S. Rep. No. 80-429 (1947). Thus, the

Committee recommended that Congress, “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 concluded 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, more than 70 years later, the Third Circuit’s decision allows States to nullify a FERC-issued

certificate of public convenience and necessity by asserting blanket 11th Amendment sovereign immunity to an eminent domain proceeding, yielding the exact outcome Section 7(h) was designed to prevent.

Even more troubling, the Third Circuit rests its decision on the implausible conclusion that “nothing in

the NGA indicates that Congress intended” to prevent this result. See In re PennEast Pipeline Co., LLC,

938 F.3d 96, 111 (3d Cir. 2019). This Court should

reverse the Third Circuit’s holding in this regard in

order to restore the NGA’s purpose, which establishes

a process for interstate infrastructure development

at the federal level.

7

II. THE THIRD CIRCUIT’S DECISION THREATENS THE LIVELIHOODS OF THOUSANDS

OF AMERICANS WHO BUILD AND MAINTAIN THE U.S. NATURAL GAS INFRASTRUCTURE.

The Pipeline Crafts represent the workers who

build and maintain the nation’s natural gas pipeline

infrastructure. These workers are highly trained

and experienced; they possess specialized skills that

enable them to perform their work according to the

highest standards and most up-to-date techniques.

The Pipeline Crafts work under collectively bargained agreements, including the National Pipe

Line Agreement (“NPLA”), which guarantee hourly

wages commensurate with the Crafts’ specialized

skills; health insurance; hourly pension contributions and other fringe benefits; good working conditions; and job protections, among other valuable

tangible and intangible compensation. In recent

years, however, legal and other challenges seeking

to delay and/or stop new pipeline development have

increased dramatically, imperiling workers’ livelihoods. The Third Circuit’s ruling would exacerbate

this problem by allowing States to nullify pipeline

permits at the final stage for any reason or no reason

at all, whether or not that decision is based on the

public’s needs.

The PennEast Pipeline presents a prime example of

all that the Crafts and the workers they represent

stand to lose from the Third Circuit’s decision. PennEast has committed to use skilled union workers from

the Pipeline Crafts to construct the Pipeline. The

Crafts estimate that construction of the Pipeline would

create approximately 2.45 million hours of work under

the NPLA and generate approximately $120 million in

8

wages. In accordance with the NPLA, the contractors

building the Pipeline would also remit fringe benefit

contributions in set amounts for each hour worked by

every employee. The Crafts expect that, for work on

the PennEast Pipeline, fringe benefit contributions

under the NPLA would total over $50 million—approximately $25.7 million to welfare funds providing

health insurance and associated benefits for pipeline

workers and their families and $25 million in payments to workers’ retirement funds. About $1.5 million in hourly fringe benefit contributions would also

be remitted to fund training, education, and safety

programs, including for new entrants to the industry.

2

The work that the PennEast Pipeline would create

for the Pipeline Crafts is the exact type that is so badly needed in the U.S. today. It is skilled work for bluecollar, highly-trained workers that supplies good wages and benefits and allows the Pipeline Crafts to fund

training for existing and new workers looking to build

careers. At the same time, it improves the natural gas

infrastructure, which benefits the public at large.

Unfortunately, since delays and obstruction of pipeline permitting have become increasingly common nationwide over the last several years, members of the

Pipeline Crafts have already seen a dramatic decline

in available jobs and have experienced associated

hardships. With major mainline pipeline projects

canceled or on indefinite hold due to these delays,

hours worked by the Pipeline Crafts under the NPLA

These figures represent only a portion of the over 12,000 jobs

and $740 million in total wages that design and construction of

the Pipeline is anticipated to create. PennEast Pipeline Project

Economic Impact Analysis, Econsult Sol., Inc., Drexel Univ.

School of Econ. 3 (2015), https://bit.ly/3b6MjLs [hereinafter

Econsult Report].

2

9

have fallen 56 percent since 2018. Obviously, this decline in hours causes a severe decrease in wages for

workers in the Pipeline Crafts. Loss of hours also

means workers often lose eligibility for health insurance through their jointly-sponsored union and employer health plans, which generally 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.

Nevertheless, a public narrative has developed that

the loss of these jobs is insignificant because: (1) pipeline construction jobs are “temporary” and (2) pipeline

construction workers can simply slide into jobs in other industries. But these narratives are misguided.

When viewed correctly, the points they raise actually

illustrate precisely why State obstruction in the permitting process and other specious legal roadblocks to

the approval of new pipeline infrastructure pose extreme harm to workers.

First, pipeline construction jobs are only “temporary” to the same extent as any other project-based

occupation. Just like a commercial architect relies on

new commercial development deals, or a lawyer relies

on a steady supply of cases, controversies and clients,

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. Construction, by definition, is a temporary activity, but that only makes the

supply of construction projects even more important

for the workers who make their careers in it.

10

Second, it is not true that all of the workers who

build large diameter, high capacity natural gas pipelines like the PennEast Pipeline can simply transition to other occupations in the energy industry or

elsewhere, as policymakers and others have suggested. The idea of finding a job in another industry, including in renewable energy, is not viable for many

pipeline construction workers for a number of reasons. For one, jobs in pipeline construction do not

necessarily translate to jobs in renewable energy.

According to a recent study conducted by North

America’s Building Trades Unions (“NABTU”), the

trades most in demand for renewable energy do not

align with the trades most in demand for the natural

gas industry. Construction Job Quality Across the

US Energy Industries, N. Am.’s Bldg. Trades Unions

15 (2020), https://bit.ly/304KyYO. See also Union

Workers Prefer Natural Gas, Oil Sector Employment,

Surveys Find, Marcellus Shale Coal. (July 23, 2020),

http://bit.ly/3uD5PXP (quoting Tom Kriger, NABTU’s Director of Education and Research: “You can’t

just interchange the jobs from oil and gas construction to renewables construction, because you’ll leave

out many workers, you’ll leave out many crafts, and

you won’t have those pathways into the middle class

that these good jobs provide.”).

Therefore, in order to transition to jobs in renewable energy, pipeline workers would have to re-train

in entirely new skill sets, losing the careers for which

they have trained so extensively. In the end, workers

affected by the unavailability of pipeline jobs find that

the jobs available to them often do not compare in

terms of wages and benefits to the skilled pipeline

construction jobs for which they have trained. The

disparity is even greater when replacement jobs are

not covered by a collective bargaining agreement.

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Roadblocks to pipeline construction and a corresponding decline in available jobs also make the Pipeline Crafts less able to add new members and advance

the ones they have. In the unionized pipeline construction industry, entry-level members require a substantial amount of on-the-job training. When there is a

shortage of jobs or uncertain timelines for permitting,

unions cannot bring in as many entry-level members

as they would otherwise because the opportunities for

placing such members in employment are reduced.

For all of these reasons, the Third Circuit’s incorrect

decision will inflict severe harm on the nation’s skilled

natural gas pipeline workforce. Sweeping changes to

the permitting and construction process for pipelines

must be done through Congress, not accomplished by

State executives in contravention of federal statutes.

Pulling the rug out from under the workers after projects have been approved is not only legally impermissible in this instance, but it also maximizes the harmful economic impacts those workers experience.

III. THE THIRD CIRCUIT’S DECISION WOULD

NEGATIVELY IMPACT THE COUNTRY’S

OVERBURDENED AND AGING NATURAL

GAS PIPELINE INFRASTRUCTURE.

As representatives of the nation’s pipeline construction workforce, the Pipeline Crafts are acutely familiar

with the condition of the U.S. natural gas infrastructure and the urgent need for it to be updated and upgraded. Simply put, pipelines are the safest and most

efficient method to transport natural gas. But the U.S.

natural gas infrastructure is subject to demand that

exceeds its capacity. The demand continues to grow

while the infrastructure suffers from age-related integrity risks that modern pipeline technology prevents.

While the NGA tasks FERC with deciding whether

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new pipeline infrastructure is in the public interest,

the Third Circuit’s ruling allows State executives to

unilaterally overrule FERC’s reasoned and expert

judgment in this regard for any reason or for no reason

at all, exacerbating the potential for disastrous effects

on natural gas consumers and the public at large.

A. The Third Circuit’s Decision Threatens to

Decrease Reliability and Increase Prices

for U.S. Natural Gas Consumers.

Natural gas powers about half of the homes in the

United States. Natural gas explained, U.S. Energy

Info. Admin. (last updated Nov. 30, 2020), http://bit.

ly/2ZO7DiA. In 2019, the most recent year for which

data is available, natural gas was the largest source of

U.S. electricity generation by far at 38 percent, followed by coal (23%) and nuclear (20%), with wind

(7.3%) and hydro (6.6%) trailing behind. Solar, biomass, petroleum, and geothermal accounted for less

than 2 percent each. Electricity explained, U.S. Energy Info. Admin. (last updated Mar. 19, 2020), http://bit.

ly/37IKja6. The share of U.S. electricity generated by

natural gas has consistently trended upwards over the

years, from 15.8 percent of all sources in 2000 to 24

percent in 2010 and now 38 percent in 2019. Id. The

U.S. Energy Information Administration, the arm of

the Department of Energy tasked with collecting, analyzing, and disseminating energy information, expects

this upward trend to continue through 2050, when its

projections end. Annual Energy Outlook 2021, U.S.

Energy Info. Admin. 3 (2021), https://bit.ly/3sCOeNI.

New Jersey and Pennsylvania, the States the Penn­

East Pipeline would serve, are both heavily dependent

on natural gas. Natural gas accounted for about 57

percent and 42 percent of New Jersey and Pennsylvania’s total electric power generation in 2019 respec-

13

tively—percentages that exceed natural gas’s share of

the country’s total electrical output. See State Historical Tables for 2019, U.S. Energy Info. Admin. (last updated Feb. 2021), https://bit.ly/381uQSC. Pennsylvania

ranks 4th in the U.S. in terms of natural gas electricity

generation, while New Jersey ranks 13th. Id.

With natural gas demand high and getting higher,

it is imperative that there be a safe and efficient system in place to deliver it to consumers. Unfortunately,

the U.S. natural gas infrastructure falls short of this

goal, with many portions at or over maximum capacity. Natural Gas Infrastructure, Nat. Energy Tech.

Lab’y (last visited Mar. 3, 2021), https://bityl.co/5nFB.

With regard to the PennEast Pipeline specifically, its

Final Environmental Impact Statement (“FEIS”) determined that “[t]here is no available capacity for existing pipeline systems to transport the required volumes of natural gas to the range of delivery points

proposed by PennEast.” PennEast Pipeline Project:

Final Environmental Impact Statement, Fed. Energy

Regul. Comm’n, Sec. 5.1.13, at 5-18 (2017) [hereinafter FEIS]. Lack of pipeline capacity makes natural

gas more expensive to consumers and creates supply

shortfalls, leaving consumers without power during

times of peak demand when electricity is needed most.

Natural Gas Infrastructure Implications of Increased

Demand from the Electric Power Sector, U.S. Energy

Info. Admin. 4 (2015), https://bit.ly/304PZHn.

It is into this environment of energy insecurity that

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

expected economic 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

14

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, Concentric Energy Advisors, Inc. 3 (2015),

https://bit.ly/3kBmBBZ. Several years later, while

tied up in a long regulatory process, an updated study

showed that the Pipeline 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, Concentric Energy Advisors, Inc. 3 (2018),

https://bit.ly/3sCbrQ1. 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, another 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 support 90 jobs. Econsult Report, at 16.

By allowing States to nullify permits for new natural gas infrastructure, the Third Circuit’s decision

poses grave risks to the already maxed-out natural

gas infrastructure in the U.S. and the consumers who

rely on it for reliable and affordable energy.

B. The Third Circuit’s Decision Threatens to

Exacerbate Safety Concerns Associated

with the Country’s Aging and Outdated

Natural Gas Infrastructure.

According to data maintained by the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA), 54.6 percent

15

of the more than 300,000 miles of U.S. natural gas

transmission pipelines—large diameter pipes that

move natural gas around the country—were put in

place before 1970. Gas Transmission Miles by Decade

Installed, U.S. Dep’t of Transp. Pipeline and Hazardous Materials Safety Admin. (last visited Mar. 3, 2021),

https://bit.ly/3pSfVAu. These pipelines are often referred to as “pre-regulation” because they were built

before the first federal pipeline safety regulations were

promulgated in November 1970. Pre-regulation pipelines were built using inferior and outdated materials,

welding techniques, and quality control compared to

modern pipelines, making them more prone to failure

and able to transport less capacity. FEIS, Sec. 4.11.2,

at 4-307 (“The frequency of significant [natural gas

pipeline leaks] is strongly dependent on age.”).

By contrast, modern pipelines feature many improvements that promote reliability and safety. The

PennEast Pipeline, for example, would be built using

modern welding techniques, would feature the most

advanced pipe coatings and would be equipped with a

cathodic protection system that protects against corrosion, as well as continuous gas and other leak detection devices. See id. Sec. 2.6, at 2-17; Sec. 4.10, at 4-250.

The Pipeline would also be electronically monitored 24

hours a day, 365 days a year by PennEast’s Gas Control Center, which would use a computerized gas-monitoring system to read pressures along the pipeline on

a continuous basis. The Gas Control Center would be

able to trigger remote shut-off valves at the first sign of

a leak or any other problem to isolate the affected segment of pipe. Id. Sec. 5.1.11, at 5-17. Before being

placed in service, 100 percent of the Pipelines welds

would be inspected (even where federal regulations

only require that 10 percent of the welds be tested) and

the entire line would be hydrostatically tested at a

16

maximum pressure exceeding industry standards

identified in 49 C.F.R. § 192. Id. Sec. 4.11.1, at 4-304.

After it is put in service, the Pipeline would be routinely inspected using “smart pig” tools that periodically pass through the entire line checking for corrosion or pitting on the inner pipeline wall that might

result in leaks in addition to other on-the-ground and

aerial inspections. Id. Sec. 4.11.1, at 4-306.

With these extensive safety features, and built by a

highly skilled union workforce, PennEast represents

the type of modern natural gas infrastructure that is

vital to relieve the heavy demands currently afflicting

the natural gas pipeline infrastructure. Without this

type of new upgraded infrastructure, natural gas transporters 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. By

allowing States to effectively nullify FERC decisions to

permit new infrastructure, the Third Circuit’s decision

contravenes the NGA’s principal purpose of serving 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).

17

CONCLUSION

For the foregoing reasons, Amici respectfully urge

the Court to reverse the decision below.

Respectfully submitted,

ellen o. Boardman

Counsel of Record

Anna frIedlander

MIChael A. GIllman

o’Donoghue & o’Donoghue LLP

5301 Wisconsin Ave, NW

Suite 800

Washington, DC 20015

eboardman@odonoghuelaw.com

(202) 362-0041

Counsel for Amici Curiae